What Is ASIC and How Do I Gain Ownership Over My Business Name?
Angus
If you are a new business owner, you will want to protect your interests in the company. To gain ownership over your business name, you may consider registering the name with the Australian Securities and Investments Commissioner (ASIC) and then applying for trade mark registration with IP Australia. ASIC is the federal regulator of company and business names. Therefore, you must register your company or proposed business name with ASIC using the Australian Government’s Business Registration Service before being assigned an Australian Business Number (ABN) and an Australian Company Number (ACN).
Following this step, you can use your business name to provide goods and/or services. However, registration with ASIC will not give you complete ownership of your business name. Although, it may assist you in the process. To get complete ownership of your business name, you must apply for trade mark registration of your business name through IP Australia.
This article will assist you, a new business owner, in understanding how registration with ASIC can help you gain trade mark ownership over your proposed business name. It will then outline how to register for a trade mark with IP Australia.
Register a Trade Mark
Even when you have registered your business name with ASIC, you do not exclusively own it. This is because the business name database run by ASIC is an administrative function as opposed to a proprietary interest register. Therefore, trade mark registration is crucial. This is because registered trade marks give you exclusive rights to your registered business name.
To register a trade mark there are four key steps.
Choose Your Business Name as Your Trade Mark
Before applying to register a trade mark in your business name, you should conduct a trade mark search. If your business name is already trade marked you may be out of luck. This is why it is a good idea to trade mark your business name before or just after you start trading as a business. You will need to apply for the trade mark in your own name or in a company name. You cannot apply for the trade mark in your business name. This is because a business name is not a legal entity, only representative of a legal entity.
Use The Pick List
The pick list is a database of over 60,000 goods and services. You use it to help decide on the correct classification for your trade mark application. The classification relates to the good and/or service that you provide. Once you confirm nobody has registered a trade mark in your business name, you can use the pick list to find the classification your business fits in. Using the pick list can make your trade mark application cheaper because it saves the trade mark examiner time. This is because it ensures you make your application under the correct classification.
For example, you may want to run a business that sells abrasive cloth with a business name of “Industrial Abrasive Cloth”. In order to register this trade mark in your business name, you might like to register your trade mark under class 37, which covers cleaning services that are abrasive in nature or have an abrasive impact on the surfaces that they come in contact with. Again, using the pick list to find this information is vital.
Decide On an Application Type
Once you have the classification for your good or service, you can decide on the type of application you might like to lodge with IP Australia. Generally, there are two main applications you can lodge. These include:
- a ™ headstart application; or
- a standard application.
The ™ headstart application is a two-part application. The first part is a quick preliminary turnaround application where the trade mark examiner will respond to your application within one week. If there are issues with your application, you will have five days to provide the additional information, or IP Australia will reject your application. If you pass the first part, the second part will allow you to register your trade mark. The ™ headstart application is more expensive than the standard application.
The standard application is a one-part application. The trade mark examiners usually take three to four months to respond to standard applications. However, if they hand down an adverse report, you will have up to 18 months to respond to the matters set out in the report.
Lodge Your Application
The final step is to lodge your trade mark application. This can be done through the IP Australia website using the trade mark application form you decide to use. Once you have lodged your application and it is accepted, you will have an exclusive right to your business name.
Key Takeaways
Before deciding to gain ownership over your business name, you should:
- review whether anyone else has registered a trade mark in your business name;
- lodge a trade mark application as early as possible; and
- determine what you intend to do with your business down the road.
If you need help applying for a trade mark, our experienced trade mark lawyers can assist on 1300 657 423.
Frequently Asked Questions
ASIC is the federal regulator for corporations and investments in Australia.
Yes, you do. The cost of a standard application in a single class and using the pick list is $250.
Yes, the earlier you trade mark your business name, the better.