19th October 2018 - Lara Alexandra

Many people believe that registering a business name will give them legal protection to exclusively use that name and prevent other people from using it. However, a trade mark and a business name serve quite different purposes.

A business name is used to identify your business so as to show people that you are operating your business under that name. You register your business name so that people can identify who the legal owner of a business is.

Trade marks are also “identifiers” because they are signs which designate the origin of goods and services. Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark as:

A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by another person.

Trade marks are intangible assets registered through IP Australia that give the owner of the trade mark the right to take action against other traders with the same or similar trade marks.

Business Name

 All business names registrations are now managed by the Australian Securities and Investment Commission (ASIC) under the Business Names Registration Act 2011 (Cth). A business name must be registered if an entity is carrying on business in Australia or is registered under the Corporations Act and is not trading in the individual’s name or the name of the company.

Purpose of registered a Business Name

Although registering your business name does not prevent others from using that name, it does identify to others that you are operating your business under that name by connecting you to your Australian Business Name (ABN).

This prevents the public from being confused or misled and provides a public registry where information concerning the registered business name is available to the public.

If another person uses your business name, however, you do not have rights to stop them from using it. Registration of business name does not give your proprietary rights over the name.

Only a trade mark gives you ownership of the brand name and the exclusive right to use that name to distinguish your business from other traders in the market. You can only get exclusive rights to a name by registering a trade mark.

Why register a Trade Mark?

With the expansion of the Internet and global commerce, it is important to register your trade mark to protect your brand name and online reputation.

• It proves you own the trade mark and it can be used as an advertising tool
• You can legally stop others from using it
• It is a good defence if another person puts you on notice of trade mark infringement
• It deters your competitors from using or registering the same or a similar name
• You can use the symbol ® next to your trade mark
• You can secure your brand asset through a registered trade mark

Your trade mark registration lasts for a period of 10 years, giving you exclusive rights to use that name, with the option to renew indefinitely so long as your renewal fees are paid every 10 years.

 Take away points

• Registering your business name lets others know this is the name under which you are operating your business
• A registered business name does not prevent others from also using the same name or give you full proprietary rights to the name
• You need to register a trade mark to obtain ownership of the name
• A registered trade mark is also a defence to allegations of trade mark infringement
• As the owner of a registered trade mark, you obtain exclusive rights to use that trade mark in Australia
• You should consult an experienced IP lawyer or trade mark attorney to ensure you claim the correct classes of goods and services under your trade mark

Lara Alexandra, Legal Assistant and Trade Mark Administrator

We are a team of trade mark attorney and IP specialists based on Gold Coast and Sydney. If you need any assistance with your trade mark, please contact us on 1300 77 66 14.

 

 
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.