Protecting Your Business Name
What’s in a name? That which we call a rose by any other name would smell just as sweet (Romeo and Juliet).
Shakespeare may have believed that the naming of things was immaterial, but when it comes to the commercial world, the name of a business is highly relevant! A business name can be an extremely valuable intellectual property asset and is absolutely worth protecting.
What’s so important about choosing a business name?
Whether you’re an artist or an entrepreneur, you’ll want a public name that stands out and which reflects who you are and what you offer your audience. Your name is your identity and your reputation – and if you don’t protect it, you may be at risk of having to change it and losing everything you’ve worked for. You might also carry the risk that others could use the same or similar name and you might be powerless to stop them.
What does ‘protect your business name’ actually mean?
It’s a competitive world out there and your brand identity is invaluable.
Your brand identity:
- is how your customers or audience find you
- helps you expand your reach
- enables you to differentiate yourself from the competition
- is inextricably linked to your reputation
If you don’t protect your business name and your identity, everything you’ve worked so hard to achieve could be compromised. Imagine discovering someone is using the same business name as you – and they’re taking customers and revenue away from you or hurting your reputation!
In order to protect your business name from being used by other traders (regardless of whether they are acting deliberately or not), it’s recommended that you have exclusive and legally enforceable rights to that particular name. And the only way to ensure this protection is by registering your business name as a trade mark.
How do you know if you need to register your name as a trade mark?
A common misconception is that when someone registers a business name with the Australian Securities and Investments Commission (ASIC), they automatically get rights to that name.
In fact, there’s a world of difference between registering a business name with ASIC and registering that name as a trade mark with IP Australia – and only the latter ensures watertight legal protections.
Let’s first look at how these differ and then I’ll explain how to protect your business or professional name.
Understanding the differences between registering a business name and registering a business name as a trade mark
Registering a business name – what’s involved?
- A registered business name is the name under which a person or an entity conducts business. You need to register a business name if you conduct business under a name other than your own.
- As mentioned, the process of registration is managed by ASIC. This government agency maintains a register of all business names (and companies) in Australia, and this database is publicly available.
- Registration can be for a one or three-year period, and is renewable for a fee. You can also cancel your registration at any time.
- A key point to note is that registration of your business name with ASIC doesn’t give you any exclusive trading rights with respect to the name (or any part of the name). That’s because you don’t own the name. Moreover, another person can also register a similar name.
- You can find out further details on the ASIC
Registering a business name as a trade mark
On the other hand, when you register your business name as a trade mark (, you gain exclusive rights to the use of that name, in connection with the sorts of products or services you provide. A registered trade mark is a tradeable intellectual property asset and you have legally enforceable rights to its exclusive use.
How to protect your business name
Quite simply, trade mark registration is the simplest way of protecting your business name. It’s the easiest way to ensure exclusive use of your business or professional name through enforceable legal rights.
The registration process is generally fairly straightforward and can be done online, but there is merit in engaging a trade marks attorney in order to get specialist advice and avoid any set-backs or unnecessary costs.
The crucial first step is to check whether your intended name is available and that it won’t be infringing on an existing trade mark. This can be done through a free trade mark search or through a more comprehensive paid search.
The timeline for trade mark registration is a minimum 7.5 months, but this all depends on whether any objections are raised or the application goes smoothly etc. Once a business name has registered as a trade mark, it is protected by law and the trade mark owner can sell, transfer, license or assign that intellectual property asset.
However, it’s important to note that the business name won’t be protected in perpetuity unless certain criteria are met. A registered trade mark should be actively used or it becomes, after a period of time, vulnerable to being removed from the register. Renewal fees also have to be paid every 10 years.
I’m a small business, serving a niche local community. Do I need a registered trade mark to protect my name?
If you want exclusive rights to your business name, you’ll need to protect it with a registered trade mark, but it’s not necessary for every business to do this. A small operation servicing a localised area and which has no intention of expanding probably might choose not to register their trade mark/s.
This is particularly so if the business name is descriptive. For example, ‘John Williams Plumbing’ or ‘Subiaco Blooms’ would be challenging to register as they are descriptive. However, they could probably trade happily without formally protecting their business names (understanding they may not be able to prevent others from using similar names). Irrespective of size or name, it’s always advisable to run a trade mark search before registering a business name with ASIC to be certain that you’re not infringing on another trader’s rights.
There are instances of David taking on Goliath and vice versa (have a read of this story on the tit-for-tat trade mark battle of Katy Perry vs Katie Perry) as well as small businesses having to rebrand at huge cost because they’ve discovered they have inadvertently infringed on a trade mark owner’s rights, so it’s always worth getting professional advice upfront as to whether or not trade mark registration is recommended.
This article is a good read if you’d like more information on trade mark registration for small businesses.
The digital world is a reality for just about every business – and the speed and reach of online communications means that online brand protection is imperative.
Why having your own domain name matters
- A domain name is a unique electronic address, and having your business name as your domain is ideal when it comes to establishing a strong online presence.
- That said however, registration of a business name or trade mark doesn’t give you automatic rights to a domain of the same name. Because domain names are granted on a ‘first come, first served’ basis, your desired identity may have been taken already.
- If you are considering starting up a new business, it’s worth ascertaining if your desired domain name is available so that you don’t waste resources developing a physical identity that can’t be supported online. There are different domains eg. .com, .au and .net, and you ought to think about your target audience and long-term goals when deciding on what to choose.
- There are different sites for checking availability of domain names, with the official one for the .au domain being Auda Domain Administration.
- Once your domain has been granted, you licence it from the registrar and have exclusive use over it for a period of time. However, the registrar will always retain ownership of that domain name. Licences are renewable and in the .au domain spaces, certain ownership eligibility requirements need to be met.
You also need to work at protecting your business name on social media and networking sites.
This includes:
- Aligning your social media branding with your registered trade mark and using the same name throughout all communications. Consistency is key here.
- Creating ‘official’ profiles with popular sites like Facebook and Instagram. This doesn’t necessarily guarantee exclusivity as each platform has different rules, but it’s important to at least secure a presence which you control.
- Securing your social media handles.
A last word on protecting your business name
It’s all very well coming up with a catchy business name that you love, but without a strong infrastructure to support that name, you could be putting its future at risk.
A registered trade mark is the way to truly protect your business name, plus you need to secure all the other public identifiers such as its domain name and social media handles.
The more effort you put in to finding the right name, ascertaining its availability and nailing down its exclusivity, the better. There are too many examples of where businesses have been hurt – and even forced to fold – because they failed to protect their brand identities at the start.
If you have any questions about trade marks (we don’t believe there’s any such thing as a silly question!) or want expert guidance on how to protect your business name, we invite you to get in touch with our friendly team at MMW Trademark Services. We have a strong reputation for affordable services through our highly experienced trade marks attorneys.
