My Business Name is Unregistered: Can I Register a Trade Mark?
Emily Young
Registering a trade mark is an excellent way to provide further protection for your brand. However, if you wish to do so but are yet to register your business name, you may have some questions. By law, any party carrying on a business under a name must register their business name. Specific exceptions to this include if you are trading under your name. This article will guide you through some considerations you should have before doing so.
Registering a Trade Mark: Eligibility
To be eligible for trade mark registration, you must be one of the following:
- a company;
- an individual;
- an unincorporated association (collective trade marks only);
- an incorporated association; or
- a charity (or other body existing under legislation).
Provided you fall into one of the above categories, you will be eligible to register a trade mark. In addition to the above criteria, you will need an address for service in either Australia or New Zealand when filing locally.
Registering a Trade Mark Without a Business Name
Although you can register a trade mark under your own personal name and do not have to use a business name, you should carefully consider choosing to do so. However, you do not need a registered business name to apply for a trade mark.
Firstly, the Business Names Registration Act (2011) outlines several rules for registering a business name. This includes restrictions on specific business names, which are prohibited without a special license. If you apply for a trade mark and later find out that your unregistered name does not meet these requirements, your efforts in applying for a trade mark might be wasted if you have to rebrand.
Similarly, your efforts might be wasted if you apply for a trade mark that incorporates your business’s name only to discover that your name is unavailable. This is because, similar to trademarks, business names are registrable and subject to availability. As such, it is practical to ensure that your proposed name is available before applying to register a trade mark.
Registering a business name is a simple process you can complete using the online Business Registration Service.
Registering a Trade Mark Under a Company
It is essential to consider several benefits to registering a trade mark under a company name rather than your own name.
Registering a trade mark under the name of a corporate entity may make it easier to demonstrate ownership if there are any disputes about the rightful owner of the trade mark.
Further, registering a trade mark under a company name will help protect the trade mark from liability.
For example, you may wish to register your trade mark with a holding company as the owner of the mark. An IP holding company is established exclusively to hold and manage IP assets, which can help separate your trademarks from your company and reduce risks in the event of any legal disputes.
Key Takeaways
Generally, any party carrying on a business under a name must register their business name. Although it is possible to register a trade mark before your business name is registered, there are several advantages to waiting until your name is officially registered. This includes you can:
- ensure your name is available;
- demonstrate ownership of the trade mark if there is a dispute; and
- help protect the trade mark from liability.
If you need help registering a trade mark or have general questions about your intellectual property, our experienced trade mark lawyers can help. Get in touch with them on 1300 657 423 or by filling out the form on this page.
Frequently Asked Questions
To be eligible for trade mark registration, you must be either a person, a company or an incorporated association. You also need to have an address for service in either Australia or New Zealand.
Although it is possible to register a trade mark before your business name is registered, there are many advantages to waiting until your business name is officially registered. This includes ensuring your business name is available, demonstrating ownership of the trade mark if there is a dispute, and helping protect the trade mark from liability.