As per the resolution issued by the General Directorate of Registries and Notaries (Dirección General de Registros y Notariado – “DGRN”) dated 18th December 2019, which was published in the official Spanish government gazette of 12th March 2020, the company name “Clorawfila” is admissible in spite of the existence of another company named “Clorofila”.
With regard to this matter, the Central Commercial Registry refused the application filed for the corporate name “Clorawfila” Limited Liability Company on the grounds that it has a phonetic and graphic similarity (article 408 of the Commercial Registry Regulations) to the already-registered corporate name “Clorofila Sociedad Anónima Laboral”. The Central Commercial Registry states in its report that in order to determine whether or not identity exists between the corporate names, the indications regarding the company form will be disregarded, and that both names “are graphically expressed in a similar way (they only differ in respect of two letters), and they have a noticeable similarity in phonetic pronunciation”.
However, the DGRN revokes the registrar’s statement of invalidity with the following explanation:
“In terms of corporate names, the concept of identity must be considered to have been extended to what is called “quasi-identity” or “substantial identity”. “This possibility of broadening the notion of identity cannot prevent the ultimate aim of the prohibition on identity from being taken into account: to identify with a certain degree of certainty the subject responsible for certain legal relationships”. Thus, the Spanish system “prohibits the identity, whether absolute or substantial, of names, but not mere similarity”.
Thus when detecting identity, “if the interpretation of the regulatory standards, especially those that incorporate concepts coated in a greater indeterminacy, such as those relating to “generic or accessory” terms or expressions, to signs or particles “of little significance” or to words of “notorious phonetic similarity” this does not have to be carried out in a restrictive manner, on the other hand, there is no room for great laxity, or the consideration that the simultaneous application of two or more of those criteria included in article 408 of the Commercial Registry Regulations is not possible. The difficult balance is to be struck in the qualification of the identity of the names, so that the interpretation and application of such regulations, in accordance with the teleological criterion mentioned, must be tempered to the circumstances of each case”.
In the light of the foregoing considerations regarding the case in question, the contested classification cannot be upheld, given that even if there is a certain graphic similarity between the terms “Chlorawfila” and “Chlorofila”, and even if the Commercial Registry Regulations provide that the indications relating to the company form are to be disregarded when determining whether or not identity exists between two corporate names, the fact remains that the outcome from a minimal grammatical difference is that the names are clearly distinguishable for the purposes of the legal requirement of identification.
Mika Tsuyuki
Vilá Abogados
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24th December 2020
