Can I Register a Trade Mark That Is Similar to a Business Name?
If you are a new business looking to protect your brand, or an established business looking to further your brand’s security, you may be considering a trade mark for your business’ name. However, it is important to know that your registered business name is not the same thing as a registered trade mark. This means there is no guarantee that you can register a trade mark for your business name.
This article will take you through the difference between trade marks and registered business names. It will also discuss whether you can register a trade mark similar to other business names.
Business Name vs Trade Marks
A business name is a name under which you conduct your business. In most cases, you must register your business name with ASIC. However, there are exceptions, like if you are trading under your own name.
If you use an alternative name to conduct your business activities, this is your trading name. Trading names must also be registered with the ASIC. Note that registering your business or trading name is a legal obligation. It does not prevent someone from registering a similar name. Registering a trade mark is also not a legal obligation, but it will protect against competitors using your brand elements, which may include your business name. Obtaining a trade mark for your business name requires separate registration.
Similar Business Names
The purpose of trade marks is to distinguish your brand from others. This means that if you find that a trade mark similar to yours already exists, you will not be able to use it. However, if the two trade marks are for completely different goods or services, it will be possible for them to coexist.
For example, ‘DOVE’ soap and ‘DOVE’ chocolate are two completely different companies, and the differences in their goods mean consumers are not confused about their origin. Therefore, it is possible to register a trade mark that is similar to an existing business name, provided that they cover completely different goods or services.
Trade Mark Searches
IP Australia is the agency that administers trade marks in Australia. They will assess your trade mark application against other registered trade marks to determine if it can be registered. This trade mark search does not include registered business names or domain names – only other trade marks will be considered. This means that if a business name is registered as a trade mark, others will not be able to register it as a trade mark. On the other hand, if your business name is not registered as a trade mark, it is left open for others to potentially use for their business.
It is important to conduct a thorough search to minimise the chance of objections during the registration process and avoid potential infringement disputes.
Trade Mark Opposition
If IP Australia accepts your trade mark application, it will be advertised and open to objection. This provides third parties a two-month period to oppose your trade mark if they believe it infringes on their own trade mark. If you are a business owner, you may wish to object to the registration of a trade mark for your business name.
Benefits of Trade Mark Registration for Business Names
As the most identifiable part of your brand, there are a number of benefits to trade marking your business name. Some of these include:
1. Business Growth
Registering your business name can help protect your brand identity and allow your business to grow. By establishing your business as a reputable brand, you will attract consumers to expand your business. Having a registered trade mark for your business name will also enable you to grow your business in other ways, such as through licensing your trade mark for franchises.
2. Exclusive Rights
A registered trade mark for your business name will give you the exclusive rights to its use. This includes the right to use and commercialise your business name. As well as the security benefits of this legal protection, there are many marketing benefits. For example, your business name will identify your business and the goods or services you provide. This will help your business stand out from the crowd.
3. Avoid Infringement Disputes
You will avoid infringement disputes by having your business name registered as a trade mark. This is because your trade mark registration will serve as evidence of your exclusive rights. If you find that another business is using your business name without your consent, you will have options to enforce your exclusive rights.
Your registered business name is not the same as a trade mark. Having a business name does not guarantee you the rights to a trade mark for it. Where two business names are registered as trade marks, they can coexist as long as they provide completely different goods or services. Some of the advantages of registering a trade mark for your business name include:
- facilitating the growth of your business;
- having the exclusive rights to the use of your trade mark; and
- avoiding infringement disputes.
Frequently Asked Questions
Having a registered business name does not automatically give you a trade mark. This means you can obtain a trade mark for an identical or similar business name if it is not registered as a trade mark. However, two registered trade marks for business names can coexist if they provide completely different goods or services.
As the most identifiable part of your brand, there are a number of benefits to trade mark your business name. This includes facilitating your business growth, having exclusive rights to your business name and avoiding trade mark infringement disputes.