The Difference Between a Business Name and a Trade Mark
A business name and a trade mark have different purposes, although they are both important when it comes to your business! All businesses need to have a business name, but not all are required to obtain a trade mark.
A Business Name is used to identify a business while a Trade Mark legally protects your brand name as the “origin of a supply” and prevents others from trading under your brand name for the same or a similar supply.
A registered Business Name or Corporate Name is not something that protects you in the form of a proprietary interest in an intellectual property asset – it is something you are required by law to have. A business name is used to identify a business, but not its products or services.
A legal entity is a person described as a sole trader, a number of people described as being in partnership, or a company recognised by the words “Pty Ltd.” (Proprietary Limited) at the end of its name.
Therefore, a business name is only used to identify a legal identity and is the name that the public uses to identify a business. Although you can register your business name, it does not provide you with legal rights to that name.
The registration of a trade mark operates in relation to branding goods or services. Only a trade mark can give you legal rights to a name for the purpose of a supply.
The National Business Names Register is administered by the Australian Securities and Investments Commission (‘ASIC’).
It is possible to register a trade mark that is the same as the business name but their different registrations are to achieve different objectives:
- the registration of a trade mark is to brand goods or services
- the registration of a business name is to identify the legal identity (e.g. sole trader, partnership or company) that owns the business
- is the name under which your business operates and is connected to your Australian Business Number (ABN);
- is registered if you are trading under a name that is not your own
- is registered nationally, and only needs to be registered once even if you trade in multiple states; and
- cannot be registered if it is identical or closely resembles a business name registered to another Australian business or company.
A Business Name does not give you legal rights to that name. Therefore, if someone else uses your business name for their business, you don’t have any rights to prevent them from doing so. This is where Trade Mark registration is important!
While it is not mandatory to register a Trade Mark, the basis for such an application is to obtain the exclusive rights to use that name in Australia for the goods and services for which you register it.
Trade mark are signs which designate the origin of goods and services. Section 17 of the Trade Marks Act 1995 (Cth) (the ‘Act’) 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
A registered trade mark is a form of personal property. Rights in a trade mark are enforceable in the same way as rights in any other personal property. A registered trade mark enjoys the protection of the Trade Marks Act 1995 (Cth).
The benefits of a trade mark are:
- a badge of origin designed to distinguish your business, products and/or services from those of others
- legally protects your name and prevents other from trading with it
- gives you exclusive use of that trade mark through Australia
- is protected in all Australian states and territories for an initial period of years; and
- makes it easier for the owner to apply for a trade mark in other countries.
When you register your trade mark, it will appear on a searchable trade mark register. Trade marking your business name or your brand will protect it in all Australian territories and states.
Remember, only a trade mark can give you ownership of the brand name and the right to stop others from using it within the limits of the registration! A business or company name does not give you legal rights to that name. It is only used to identify a business.
Svethlana Milanes, ABComm
Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at firstname.lastname@example.org.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.