When starting a new business the first thing most entrepreneurs choose is a name. Once chosen they typically have this registered with the Australian Securities & Investments Commission as a business name or as a company and mistakenly think that this gives them the rights to the name. This is absolutely not the case and registering a business or company name does not give you any exclusive rights to the name. Further, it doesn’t stop other traders from using the name. The only way to own a name, brand or logo is by registering a trade mark. If you don’t do that then you leave your name on the table for anyone else to use or even own.
Imagine starting a new company, spending money on developing logos and marketing material only to find out you do not own your name, worse cannot own the name or worst of all someone else owns the name and you land up fighting a trade mark infringement battle when you should be concentrating on growing the business! This happens all too often as the current interaction between business names, company names and trade marks is confusing.
We hope to highlight the differences between these in this article.
Business and company names, what’s the difference?
A business name is a name under which a company or person conducts business. A business name is required in any instance where the name under which you want your business to run is not exactly the same as your personal or company name. For example, if John Citizen wanted to trade under the name “John’s Sporting Goods”, then he needs to register a business name for “John’s Sporting Goods”.
A company name is the registered name of a separate legal entity registered typically as a proprietary limited or public company. For example, if John Citizen wanted to run his sporting goods business through a company he may choose to register the company John’s Sporting Goods Pty Ltd.
You can associate an ABN with your business name or company and also open a bank account using the name of the business or company. However, and importantly registering a business name or a company does not give any proprietary rights to the registered name.
Business names and companies are registered with the Australian Securities and Investments Commission (ASIC) but ASIC doesn’t prevent you from registering a name unless it’s already taken or extremely similar to another name. This means ASIC will allow you to register a name that potentially infringes on another parties trade mark rights, so while you may be able to register it, you can’t actually legally use it as a trade mark.
This may sound unfair but ASIC does include a warning on their website. However, with most terms and conditions many people simply don’t understand or read the conditions and just click to continue on potentially registering business names that infringe on registered trade marks.
What is a trade mark?
A trade mark is a sign that is used to distinguish goods or services from those provided by another person. They are used to allow consumers to easily identify the producer of products. Trade marks are an effective marketing tool to advertise your product by providing a unique and recognisable identifier in the marketplace.
Trade marks can be formed by using or combining signs such as words, numbers, names, brands, colour, shape, packaging, smell or sound. The protection a trade mark gives can cover a business name, company name or domain name and only trade marks confer proprietary rights which allow you the sole right to use and enjoy the trade mark.
That means the only way to truly own your business name or company name is by registering a trade mark for that name.
So in the example above, if John Citizen wanted to protect his brand name he needs to file a trade mark application for “John’s Sporting Goods”.
So my name isn’t protected if I don’t have a trade mark?
Unfortunately not. As discussed above, registering a business or company name does not give you ownership of the name. It does not give you exclusive use of the name or any part thereof and it does not stop another person from registering a deceptively similar name to yours or even using your name on their products or services.
It’s not too late to try and have your trade mark registered though. We help startups and established business register trade marks on a day to day basis and have an easy to follow process to get you broad and valuable protection for your business or company name. Contact our trade mark attorney experts at Baxter IP any time to find out how to protect your name.