Why the Austrian Register Court Refuses a Company Name

Four questions, in this order, and they are cumulative: a name that clears three and fails the fourth is refused.

1. Can this name name somebody? Kennzeichnungseignung, the capacity to serve as a name. A descriptive name may contain the object of the business, but pure generic terms and branch designations are inadmissible for want of individualising effect (RS0122494, 6 Ob 188/07a and four later decisions).

2. Does it distinguish? Unterscheidungskraft. This is an abstract test and it comes before any comparison with an existing name. The section below sets out what the court means by it.

3. Is it misleading, obviously? UGB § 18 Abs. 2 bars particulars apt to mislead, then narrows the court's job: "Im Verfahren vor dem Firmenbuchgericht wird die Eignung zur Irreführung nur berücksichtigt, wenn sie ersichtlich ist." In register proceedings the capacity to mislead counts only where it is apparent. The court is not investigating your business.

4. Does it carry the right legal-form component? Every registered form has one, prescribed by statute rather than by convention. The table two sections down gives each with its paragraph.

Nine grounds, each traced to the provision that produces it. Where the ground comes from case law rather than from the statute's words, the Rechtssatz number is given so it can be read at source.

The most useful thing to know about an Austrian name refusal is the order in which the two similar sounding tests are applied, because founders routinely start with the wrong one.

Distinctiveness under UGB § 18 Abs. 1 is not about anybody else's name. It asks whether the name can evoke, in readers and hearers, the association with one particular undertaking among many. The Supreme Court states that this individualising capacity need only be present generally and abstractly, and that the concrete identity of the holder need not be derivable from the name. Then comes the sentence that fixes the sequence: only once the abstract individualising function can be affirmed does the question arise at all whether a name might be confused with an identical or similar one and be inadmissible for that reason (RS0122544, 6 Ob 188/07a and six later decisions to 6 Ob 28/22v).

Two consequences follow. A name made only of a trade term plus a legal form fails at the first gate whether or not anyone else holds it; and a name that clears the first gate can still fail the second, on comparison, which is a different enquiry with a different yardstick.

Two further holdings decide most borderline cases. With composite names the overall impression decides and not a dissecting reading, and ambiguity counts against the person carrying the name (RS0122547). Whether an addition is apt to deceive a not inconsiderable part of the relevant public about the kind and extent of the business is judged the same way, on the whole rather than component by component (RS0061344).

This is where imported assumptions do the most damage, because the rule is narrower than the one most founders arrive with. UGB § 29 Abs. 1 reads: "Jede neue Firma muß sich von allen an demselben Orte oder in derselben Gemeinde bereits bestehenden und in das Firmenbuch eingetragenen Firmen deutlich unterscheiden." Every new Firma must differ clearly from those already existing and entered at the same place or in the same municipality. The statute does not ask for a name unique in Austria.

The court runs that comparison itself. On a transfer of seat the Supreme Court held that its duty of examination extends to whether the requested entry satisfies the principle of distinguishability, that it must compare the notified name with those already entered at the same place or in the same municipality, and that where a risk of confusion exists it must object to the application and work towards the name being changed (RS0061657, 6 Ob 10/90, 6 Ob 139/11a, 6 Ob 102/16t).

How strict the comparison is varies. Distinguishability is required whether or not the objects of the two businesses are the same, and where they are wholly or partly the same the requirements are especially strict (RS0061820). What counts is how the name is customarily used in everyday business, and with descriptive names and businesses in the same trade the yardstick is stricter (RS0061851). An appellate court refused a name of the pattern MUSTERWORT Holding GmbH against an existing MUSTERWORT und Partner company at the same address in a neighbouring trade: the shaping element was the leading personal name in both, "Holding" and "Partner" indicated the organisational form rather than the object of the business, and economic interlinking with partly the same individuals increased the risk of confusion (RG0000057, 4 R 135/08t). MUSTERWORT is not a word but an invented placeholder, and it is the only specimen on this page.

One Austrian form is governed differently, and the difference is worth knowing before a structure is chosen: "Der Name einer Privatstiftung hat sich von allen im Firmenbuch eingetragenen Privatstiftungen deutlich zu unterscheiden; er darf nicht irreführend sein und muß das Wort Privatstiftung ohne Abkürzung enthalten." Clearly distinct from all private foundations in the register, with no geographic limit, not misleading, and carrying the word without abbreviation (PSG Art. 1 § 2, BGBl. Nr. 694/1993, in force since 1 September 1993). That is the Austrian private foundation.

Each registered form carries a component fixed by its own statute. Two points founders get wrong: the statutes name the full designation and then permit an abbreviation, rather than prescribing one; and a FlexCo does not carry the GmbH designation at all.

A name can be distinctive, honest and correctly suffixed and still be refused, because a separate statute reserves one of its words. No disclaimer cures that: the question is whether you hold the authorisation, not whether a reader might be confused.

The Wirtschaftskammer opinion on a proposed name is the single most misunderstood step in Austrian incorporation, and the statute that governs it is short enough to settle the question (FBG § 14, in force since 1 January 2007).

1. The court may ask. It is not obliged to, and you cannot make it. Abs. 1 lets the court involve the competent statutory interest representation in doubtful cases, to avoid incorrect entries. Two conditions, both in the court's hands: a doubtful case, and the court's own decision to ask.

2. Silence is agreement, after at least fourteen days. Abs. 2 covers the case where the court has asked for an opinion on a condition of entry, expressly naming the admissibility of the company name as its example: "und die Interessenvertretung binnen einer vom Gericht gesetzten, mindestens vierzehntägigen Frist keine Stellungnahme abgegeben, so ist anzunehmen, daß die Interessenvertretung die entsprechende Eintragungsvoraussetzung bejaht." Silence for the period the court sets, which must be at least fourteen days, is an affirmation.

3. The opinion is support, not a decision, and the chamber has its own standing. Abs. 3 makes the interest representations support the court in avoiding incorrect entries, in correcting and completing the register and in intervening against inadmissible use of a name, and lets them apply and lodge legal remedies for that purpose. Nothing in the paragraph binds the court to what they say.

Two limits on who "competent" means, both from the Supreme Court: the representation entitled to apply and to appeal is only one to which the registered entity belongs (RS0059133), and the standing is purpose-limited rather than general (RS0059144). So the medical chamber was held not to be a competent statutory interest representation on the entry of a capital company whose object was operating medical centres, and to lack standing to appeal for that reason (RS0120154, 6 Ob 189/05w).

Settle this before choosing a name, because two registers that never speak to each other can both be right. The tests the register court applies are the ones above: the name function and distinctiveness, apparent misleading, distinguishability from the names entered at the same place or in the same municipality, and the legal-form component. None of them is a trade mark search, and no provision of the Commercial Code or the Firmenbuchgesetz read for this page requires the court to consult the trade mark register.

The collision is real even so, and the trade mark act says so in terms: "Als Benutzung eines Zeichens zur Kennzeichnung einer Ware oder Dienstleistung wird insbesondere angesehen: ... das Zeichen als Handelsnamen oder Unternehmensbezeichnung oder als Teil von solchen zu benutzen." Using a sign as a trade name or company designation, or as part of one, is use of the sign for goods or services (MSchG § 10a Z 4, in force since 14 January 2019), which is the use the proprietor may prohibit under § 10, with an injunction under § 51 Abs. 1. The defence for using one's own name in § 10 Abs. 3 Z 1 is available where the third party is a natural person, so a company cannot invoke its registered Firma as one.

A second route is not limited to trade marks at all, and it has no geographic limit either. Anyone who in the course of business uses a name, a Firma, the special designation of an undertaking or a registered trade mark in a way apt to cause confusion with the name, Firma or special designation another uses with authority may be sued for an injunction, with damages where the user knew or had to know (UWG § 9 Abs. 1 and Abs. 2, in force since 20 July 2022). The Commercial Code gives the mirror image in UGB § 37.

So the municipality yardstick in UGB § 29 is a register-keeping rule, not a clearance. The clearance work is registering a trade mark in Austria, a different register with a different effect.

Passing the register court is not the end of it. The trade authority examines the same words on a different statute, with a different threshold and a different consequence.

On a trade registration the authority examines whether the statutory conditions for exercising the trade are met, and the paragraph adds: "Als Mangel der gesetzlichen Voraussetzungen gilt auch, wenn der Firmenwortlaut im Hinblick auf den Inhalt des Gewerbes eine erhebliche Irreführung bedeuten würde." A defect in the statutory conditions also exists where the company name would mean a considerable misleading with regard to the content of the trade. Where the conditions are not met, the authority must find so by decision and prohibit the exercise of the trade (GewO 1994 § 340 Abs. 1 and Abs. 3, in the version in force since 1 November 2025).

Read the two thresholds together. The register court considers misleading only where it is apparent on the face of the name, and it is not examining your trade licence; the trade authority is looking at the name against the content of the trade you applied for, which is exactly the comparison the court is not making. A name that survives the first can fail the second, and the object of the business in your articles is what joins them. That is the trade licence the business itself needs.

The register this is decided in. What is entered, what it costs to look and what each line of an extract means: what the Firmenbuch holds and how to read an extract.

The filing the name goes into. Capital, the notarial deed and the documents the court expects on a first registration: how an Austrian GmbH is formed.