What Is the Difference Between Registering and Trade Marking My Business Name?
After registering your business’ name, you may think that you have the exclusive right to use the name. However, this is not exactly the case. The process of registering a business name is separate from the process of protecting your business name from being misused by others. Knowing the difference between registering and trade marking a business name is important to understanding the rights you have to use the name. This article outlines the:
- purpose of registering and trade marking your business name;
- practical consequences of doing so; and
- relevant processes.
Purpose of Registration vs. Purpose of Trade Marking
Registering a business name with ASIC via Business Registration Services is a legal obligation. A business name is what you use to identify your business, and is especially important when you operate the business under a name that is not your own. If you are a sole trader, in a partnership or part of a company, and you want to call your business something other than your own name, then you must register your business name.
For example, the company Audio-Visual Copyright Society Limited trades under the name Screenrights.
However, trade marking a business name is not a legal obligation. Instead, it is a form of intellectual property that provides added legal protection, giving you the exclusive right to use your business name when selling your products or services. In this sense, trade marking your business name ensures that others cannot copy your business name.
Consequences of Registration vs. Consequences of Trade Marking
Registering a business name is necessary to identify the business. However, registration alone does not:
- give you the exclusive right to use the name; or
- prevent other businesses from registering a similar name.
When you choose your business name, it is important that your business name is not identical or too similar to a business name that someone else has already registered. This is because once you have registered your business’ name, another business cannot then operate under that same name. However, there are instances where businesses are registered under the same name. This often leads to legal disputes which may result in you having to change your business name if you have not protected it.
However, if you have trade marked your business name, it has greater legal protection in the instance where a similar name dispute arises. A registered trade mark gives you the exclusive right to use, licence and sell the business name. Trade marking your business name allows you to:
- protect your business name from misuse by competitors;
- reduce the risk of infringing someone else’s registered trade mark rights; and
- protect your brand identity.
If a business copies your trade marked business name, that business is likely to infringe on your intellectual property rights. Having trade mark protection over your business name ensures that you have legal avenues to protect your business’ identity.
Registration vs. Trade Marking
As previously mentioned, the process of registering a business name is a separate process from trade marking your business name. These processes are summarised below.
Before you register your business name, it is important to check that your desired name has not already been registered. You can complete this check online via Business Registration Services. You can also complete the process of registering a business name online. Registration requires:
- an Australian Business Number (ABN), or for you to be in the process for applying for an Australian Business Register (ABR);
- an available business name to register under; and
- payment of the registration fee.
You can apply for trade marks via IP Australia. It is important that you closely follow the registration process in order to avoid costs associated with any mistakes in the application. A trade mark application will require you to determine:
- the type of trade mark you are applying for;
- a trade mark check to ensure that your trade mark does not already exist; and
- the class that your trade mark will apply to.
The trade mark application will then require you to submit both your personal details and a representation of your trade mark, including a description of the good or service that the trade mark will apply to.
Registering your business name does not mean that you have the exclusive right to use the business name. A registered business name is a legal obligation that is necessary to identify your business. On the other hand, trade marking is not a legal obligation but an added protection against other people from misusing your business name. If another business decides to misuse your trade marked business name, you are likely entitled to seek a legal course of action for the trade mark infringement. If you require more trade mark legal assistance, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
No, trade marking your business name is not a legal obligation. However, it can provide the necessary protection to secure your business’ identity.
Registering your business under a trade marked name can lead to an infringement on the trade mark owner’s intellectual property rights. This can lead to both unwanted and costly legal consequences.
Under Australian intellectual property law, trade marks last for ten years. However, trade mark registration can be renewed 12 months before its renewal date.