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If you are starting or running a business in Australia, it is critical to understand the difference between a business name and a trade mark. They serve different legal functions and conflating them can create costly problems down the track. A short definition of these are:
- A business name is an administrative requirement that identifies who is behind a business.
- A trade mark is a form of intellectual property that provides exclusive legal rights to use and protect your brand in connection with specific goods or services.
What is a business name in Australia?
To trade as a business in Australia, you need to register a business name with the Australian Securities & Investments Commission, commonly known as ASIC.
The registration allows you to trade under that name and helps the public identify the person or entity behind the business. It is merely an administrative requirement.
Importantly, a business name registration does not give you ownership of the name or any exclusive right to use it. This means another business could use a similar name, and if they own the trade mark, they could potentially even stop you from using yours.
What is a trade mark, and what does it protect?
A trade mark, on the other hand, is what protects your brand. You register a trade mark through IP Australia, you gain the exclusive right to use the mark or to authorise others to use it, in relation to the goods and/or services for which it is registered, and the right to take action if the mark is infringed.
A registered trade mark allows you to prevent competitors from using names or brandings that are confusingly similar for the same or similar registered goods and/or services, and helps safeguard the value of your business as it grows.
Trade mark protection is tied to the specific goods and services for which it is registered. There are 45 trade mark classes in total, so it’s important to make sure you’re covered in your specific classes! This means that in some cases different businesses can use the same or very similar mark if they operate in unrelated fields.
However, if consumers are likely to be confused, using the same or similar mark across industries can still present issues.
Before deciding on a business name, it is important to search both the ASIC business names register and the IP Australia trade mark register. It’s also a good idea to search other platforms as well.
Failing to check the trade mark register is a common reason businesses are later forced to rebrand, often after investing significant time and resources into building their brand.
Registered trade marks are business assets that can be sold or licenced and registration lasts for 10 years which could then be renewed every 10 years indefinitely, provided renewal requirements are met.
For business founders, particularly those looking to grow and/or expand, offer a license or franchise, or potentially sell the business – early trade mark filing is prudent.
Be sure to register your trade mark or seek advice:
- before investing heavily in design, website, or marketing
- before branding or launching products
- before investor discussions
The bottom line
In short, registering a business name lets you trade, but registering a trade mark protects your brand. For most Australian businesses, the safest and smartest approach is to do both.
To ensure your brand is properly protected, seek trade mark advice from experts as early as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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