When starting out, small businesses often think, “I registered my business name with ASIC, so the name is mine.” It makes sense at first, because you paid a fee, you got a certificate, and you can find your name on the register. However, only a trade mark can give you ownership rights over your name, and you don’t get a trade mark from simply registering your business name.
In this article, we cover the differences between a trade mark and business name registration in Australia, and why you need both.
What does a business name registration actually give you?
Registering your business name is an identification requirement; it doesn’t give you any ownership rights. This is because the purpose behind registration is for people to be able to find your business and who is running it.
For this reason, you don’t need to register your business name if:
- You are using a sole trader business structure under your first name and surname;
- You are using a partnership business structure under you and your partners’ first names and surnames; or
- You incorporated a company and are trading under your company’s exact name.
This is because if you’re trading under your exact name (no additional words!), then people already know who’s behind your business.
Business name registration gives you:
- permission to trade under that name; and
- an entry on a public register linking the name to you
It will not stop someone else using a similar name, and it will not protect you if someone with a registered trade mark says your name infringes theirs.
What does a trade mark give you?
A registered trade mark gives you the exclusive legal right to use that mark for the goods and services it is registered for, across Australia. It is property: you can enforce it against copycats, license it, and sell it. If someone starts trading under a confusingly similar brand in your space, a trade mark is the tool that lets you make them stop.
Though Australian trade mark registration can be more costly than just registering a business name, and it can vary depending on what goods/services the trade mark needs to cover. However, protection lasts ten years and is renewable indefinitely for a fee.
To ensure you register your trade mark properly, you should obtain advice from a qualified lawyer, who will generally manage the entire trade mark application process for you.
Does my company name protect me instead?
No. A company registration protects the exact corporate name from being registered by another company, but it does not stop anyone using a similar trading name or brand, and it gives you no infringement rights. The trade mark is the tool that lets you enforce your rights.
What happens if you only have a business name?
Let’s explain it with a scenario. You build your business for three years. Someone else registers a trade mark over the same or a similar name, and they send you a letter demanding you stop using your own name.
Because your business name registration gives you no priority and no ownership, you could be forced to start your brand from scratch. Your signage, domain, packaging and the goodwill you built are all gone.
We see the reverse too. Some businesses choose and register a name without looking at whether the matching trade mark is already taken, and have to overhaul their brand if they want trade mark protection.
We covered what to do when someone copies your brand in an earlier article, but prevention costs a fraction of the cure.
What should you do?
- Search before you commit: Check IP Australia’s register for identical or similar marks in your industry before you fall in love with a name.
- Register the trade mark early: While Australia recognises trade marks based on who used it first, arguing this against copycats can be costly and time-consuming.
- Register the right thing: Trade marks can be classified by kind and by class. ‘Kind’ refers to whether you’re trade marking a word, logo, colour, etc. ‘Class’ refers to the kinds of goods and services you’ll use your trade mark on, like clothing, exercise equipment, electronics. Your trade mark should cover classes of goods and services that you sell now and realistically will sell soon. The wrong kind or class means that you have the wrong kind of coverage. If this happens, you’ll have to pay for further trade mark registration. This is where an experienced trade mark lawyer can save you time, money and effort.
- Keep the business name registration current too: You still need it to trade under the name.
What next?
Our trade marks and branding team runs searches, gives you a clear risk view before you spend money, and files applications at fixed fees. For help with protecting your brand, book a free consultation and we will map out your options.
