Creating your own brand is so exciting, but it is important to protect it with a trade mark. Make sure that you don’t get too attached before speaking to a trade mark lawyer.
Never get attached to a brand name or logo until you’ve spoken to a trade mark lawyer.
– Megan Nguyen, The Legal Shop
I’ve seen this happen too many times. So many brands get trapped because they’ve thought of an amazing name but they:
- Get hit with a cease and desist letter 6 months in from someone with a similar name
- Aren’t able to trade mark the name because it’s too generic or already registered, and lose this crucial value in their business come time to sell
- Only register a business name but not a trade mark and lose their ability to register the trade mark
- Pick a name that is only available in Australia but they’re planning on expanding globally
I walk you through these issues in our free consultation so that you can select a brand that can grow with you.
If you want to make the most of our services, you need to be flexible about the name and willing to change it if needed. Whether you are an online or offline business, don’t fall into the trap of an un-trademarkable brand name!
What is the difference between a registered business name and a trade mark?
In Australia, a registered business name is a legal requirement to trade under that name. A registered trade mark gives you the right to use the name and enforce it against copycats.
The first thing most new businesses start with is a business name registered with the Australian Business Register (ABR). If you are not trading using your own personal name or through a company with your trading name, then this is a legal requirement.
Why you need a registered trade mark
There is a common misconception that a registered business name is enough to protect a brand. But did you know that without a trade mark, others can use almost the same name as your business name? For the same business that you do?!
Why register a trade mark when I have already registered a business name?
No one else can register the same business name as me, right?
– New business owner
It is true that the ABR does not allow registration of the exact same business name, if it already exists on the register. However, variations of the name can still be registered.
For example, if your registered business name is TLS, others can still register ‘TLS Australia‘, ‘TLS Group‘, ‘TLS Melbourne‘ or any other variation of the name.
These other registered businesses could even trade in the same industry as you. It is usually more expensive and challenging to try to get them to stop using the name.
This is where a registered trade mark comes in. A trade mark gives you the right to take action against other people using the same or a similar name to your registration.
What are the benefits of registering?
A registered trade mark:
- Allows you to take action against copycats
- Reduces risk infringement claims
- Provides tangible value when selling your business in the future and is more appealing to a future buyer
- Can protect your domain name (those with a registered trade mark may be able make a claim for a .com.au domain name of the same name)
- Allows you to obtain brand protection on some sale platforms, such as Amazon and reduces risk of your store being shut down for infringement claims
How to choose a good brand name
The best brand names are those that are:
- unique;
- not descriptive of what you do;
- not a commonly used word in your industry; and
- not similar to any one else’s trade mark in that industry.
This is to ensure that you are able to register the name as a trade mark.
I recommend conducting your own preliminary searches on Google and ASIC to see if anyone else is using the name, before getting legal advice. Also think about whether you are planning to expand overseas and see if there is any similar brands in those countries as well.
Make sure to register early! Once someone else registers a similar name, it becomes significantly more costly and challenging to obtain registration (not to mention the costs involved if you have to defend against an infringement claim).
Key take-aways
In short, it is best to have both a registered business name and trade mark.
Make sure you get legal advice when registering. You might want to cut corners when starting up, but getting it wrong can be costly in the long term – especially if you want to expand internationally.
We offer reasonable, fixed fee packages for trade mark applications and availability searches, including international availability searches. Book in a free consultation with us or contact us.
