Business Name vs Company Name vs Trade Mark vs Domain Name: The Definitive Australian Guide
Choosing a company name or business name is often the starting point for a new venture. But what’s in a name?
There’s much more to the choice – and use – of a company name in Australia than many people realise.
- a company name is a legal identity
- a business name identifies the entity’s trading name
- a registered trade mark provides legal ownership of a name
- a domain name is the foundation for a digital footprint
The business name is an identifier and whilst the business owner may choose one that they think will resonate strongly with the target market, there are a number of different regulatory processes and government registers to be considered. What’s more, the various legal ramifications of a name, ownership of the name and the use and protection of that name can be confusing.
This guide unpacks the legal and practical differences between a business name, company name and trade mark in a simple and easy-to-understand way.
A definitive Australian guide to company names vs business names vs trade marks vs domain names
This definitive guide clarifies the differences between the various registers for business names in Australia and explains the purpose, requirements and legal outcomes of each.
It takes you through:
- Company name (through ASIC) which establishes a separate legal entity
- Business name (through ASIC) which is a legal requirement to operate under a trading name that differs from the owner’s name (whether that be an individual owner as a sole trader, a partnership or a company)
- Registered trade mark (through IP Australia) which establishes legal ownership and exclusive use of a name
- Domain name for online brand identity
This guide also includes practical examples of each process, answers FAQs and addresses common misconceptions. You will also find links to recommended resources if you’d like further information on any section.
Why the choice of name is important
Choosing a name for a new venture is a crucial decision.
It’s not about picking one that sounds good, or which has emotional appeal or that seems logical and appropriate to the nature of the enterprise. Choosing the right name is the foundation for your business’s future, it will ensure continuity of the name going forward, build value in your brand and can save time and money. In short, your choice of company or business name matters.
This article on the importance of choosing the right business name highlights real-life scenarios of disputes and demonstrates the complexity of the world of trade marks and the limitations of using descriptive trade marks in a name.
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. It’s really important to understand that there’s a world of difference between registering a business name and registering that name as a trade mark with only the latter providing a comprehensive legal shield for your business.
Read on to discover everything about company names, business names, trading names, trade marks and domain names, as well as the various government registers involved and the rights (or otherwise) attached to each of those processes.
Company Names
Definition of a company name and other structures
A company name has to be registered with the Australian Securities and Investments Commission (ASIC).
A company name represents a registered/incorporated company, which is then its own legal entity. It is a separate legal ‘person’ to the individuals that may direct the company. If the company is incorporated, typically the Pty Ltd suffix is required to be used wherever applicable. Other company names may simply use “Limited” or “Ltd”, typically referring to public rather than private companies.
If the company trades under a name other than its officially registered name, then it will likely need to register that name as a business name with ASIC. A business name can also be in the name of a sole trader (eg John Wilson), in the name of a partnership (eg John Wilson and Jane Wilson), the trustee for a trust (eg the Trustee for the Wilson Family Trust).
Put simply, a business name is an ‘alias’ for whoever is running the business, allowing consumers to locate the business details, and operator details, if ever needed. Neither company names nor business names convey ownership or protection over the choice of name.
When to register a company name?
Registering a company name or business name is often the first step for a business venture. However, for reasons discussed below, trade mark searches should be carried out before putting the name to public use.
What happens when a company name has been registered?
All companies registered under the Corporations Act 2001 automatically receive an Australian Company Number (ACN) upon registration with ASIC and a certificate of registration.
The ACN is a 9-digit number issued by ASIC for registered companies to confirm their separate legal entity status. Essentially, ASIC uses the ACN for identification purposes and to monitor companies.
An ACN (Australian Company Number) is different to an ABN (Australian Business Number), which is a 11-digit number issued by the ATO for tax purposes and overall business identification. An ABN is issued to all businesses, regardless of their size or structure.
A company’s ABN is typically based on its ACN.
Whilst all companies automatically receive an ACN upon registration with ASIC, every entity that intends on trading should apply for an ABN separately, which is applied for through the Australian Business Register (ABR).
Companies need both numbers, whereas sole traders and partnerships only need an ABN.
If you are unsure as to the correct structure for your business, nor whether you need an ABN, GST Registration or similar we encourage you to speak with a suitable accountant who can provide further advice in that regard.
FAQs About Company Names
Is a company name the same as a business name?
No.
Can identical company names be registered with ASIC?
No. Similar or nearly identical names may also be rejected by ASIC.
How do I know if my intended company name is available?
ASIC maintains a public register for company names as well as business names, so you can do a search before starting the registration process. Remember to search for different spellings, variations with abbreviations and punctuation eg FourSquare, Four-Square, 4-Square and Four Square. Also remember to conduct a trade mark search to ensure the proposed company or business name is safe to use.
Can I reserve a company name with ASIC?
Yes. If you aren’t quite ready to register your company name (eg because you are preparing documents or waiting on finance), you can apply to ASIC to reserve it. This is generally given for a two-month period, with an option to extend.
Recommended reading: Business name and company registration in Australia
Business Names
Definition of a business name
A business name is the trading name attached to an ABN. It is different to a company name and is often referred to as a trading name.
A business name helps customers to recognise and remember your business, and to locate the operator/s details if needed.
While a business name is a legal requirement for operation under a trading name, there are several business structures which don’t require registration of a business name. For example, if you are a sole trader, trustee or are trading under your own name, you don’t need to have a separate trading name. Be mindful, this refers to operating under exactly your name. e.g. Jane Wilson Photography would still require business name registration, even if the sole trader/operator is Jane Wilson.
However, if you intend trading under a different name to your legal name or registered company name, you will need to apply to ASIC to register your public-facing name.
A single legally registered entity can have multiple business names for trading. In simple terms, the person, partnership or company can have multiple business names attached to their single ABN.
Why a business name is necessary
Registration of a business name is mandatory before the business can start trading.
The reason for registering a business name is to ensure that consumers and other entities that the business engages with (suppliers, merchants, government departments etc) can identify the legal owner/operator of that business.
The official process for securing a business name
ASIC is the official agency for registering a business name. You can register a business name through the Australian Government’s Business Registration System or ASIC’s online system, ASIC Connect.
An ABN is typically a prerequisite for registering a business name.
When you apply to register your business name, ASIC will ascertain whether anyone has already registered the same name. They won’t allow identical or very similar business names to be registered or reserved.
ASIC’s business names register is public, so you can always do your own check to see if your proposed business name is available prior to submitting your application to save time and resources.
It is possible for a third party (typically an accountant) to register a business name on another party’s behalf.
There is a fee to register a business name and names can be registered for up to three years (further fees payable on renewal).
What you need to know about your rights with regards to a business name
As mentioned, your business name helps customers to recognise and remember your business.
Registering your business name with ASIC means you can run your business under a name that is not your own name. No one else can register an identical business name, but remember that trade mark registration is the only way to secure exclusive IP rights to a business name.
Many people don’t realise that registering a business name could infringe a trade mark. When applying to register a business name there ASIC will require the applicant to tick a series of check-boxes before continuing the application, which alerts applicants to this fact, but this is often overlooked. Further, the guidance provided on registration of a business name at the core ASIC pages discusses this also. The only way to ensure you aren’t infringing on another’s rights and to protect your own intellectual property is to register your business name as a trade mark. At the very least, conduct the necessary trade mark searches before registering a company name, business name or domain name. This article on the differences between registering a business name and registering a business name as a trade mark provides helpful clarification on this topic.
Whilst business names and company names serve different purposes to trade marks, the only way to ensure strong legal protections is through trade mark registration. Trade marks are covered in greater detail in the next section of this guide.
FAQS About Business Names
Do business names have legal rights?
From an ownership/legal right to the use of a name, business names and company names are treated equally and neither guarantees exclusive IP ownership rights nor use of the name.
Is a business name exclusive?
Registering a business name means that you can carry on a business under that name, assuming it does not infringe a registered trade mark. No one else can register a name that is identical. Whilst near identical names may be rejected by ASIC, often similar business names are allowed. For example, WILSON PHOTOGRAPHY may be registered as a business name, and, ASIC may allow WILSON PHOTOGRAPHY SYDNEY or similar.
However, there’s a common misconception that registering a company name and business name means exclusivity of use and legal protections and rights to those names.
The only way to guarantee exclusive use of a name with watertight legal protections is through registering the name as a trade mark with IP Australia.
Recommended reading: Protecting your business name
Trade Marks
Definition of a trade mark
A registered trade mark serves as a ‘badge of origin’.
A trade mark can be any distinctive ‘sign’ such as a name, logo, sound, smell, element of packaging or slogan (or a combination of these things) that serves to distinguish one trader’s goods/services from the similar activities of others. And a single entity can own multiple different trade marks.
Trade mark registration provides enforceable legal protection for and exclusive use of a unique brand identifier such as a name or logo for a designated class/classes of goods or services and distinguishes a business’s goods or services from those of its competitors.
Registration of a trade mark give you the right to stop others from using the same – or confusingly similar – mark for the same or related goods/services you’ve covered, presuming no defence exists. It also provides you the right to use your registered trade mark for the goods/services nominated, without infringing other trade marks.
When to register a trade mark
Ideally, you should check whether your intended business name is safe to use and would be available as a trade mark before settling on it. Particularly, at the time of publication, case law is telling us that failure to consider trade marks at the time of adopting and using a name can lead to a later finding that you did not choose the name honestly, which could lead to an inability to ever register your name as a trade mark.
You can do this through a free trade mark search on our website, or enlist our help to do a more comprehensive search.
Benefits of trade mark registration
A trade mark offers far stronger brand protection than a business or company name.
When you register your name as a trade mark, you secure exclusive ownership rights over that name for the types of goods or services you sell under that name, and create the legal right to stop others from using the same or similar name, presuming they have no valid defence to such a claim of infringement.
The reason for this is that business names are for business identification, whereas a trade mark protects ownership of intellectual property.
A registered trade mark will always have superior rights over a registered business name regardless of the dates of registration, unless the earlier registered business name was first used as a trade mark in the marketplace. Rights that come from legislation as opposed to common law –are typically much easier to prove.
FAQS About Registered Trade Marks
Is it necessary for all businesses to have trade mark protection?
Trade mark registration is a matter of choice, but it is the simplest way to achieve enforceable rights to your trade mark/s.
Businesses of all shapes and sizes can benefit from trade mark registration and the process can be surprisingly affordable. Indeed, often small businesses will benefit more so than larger businesses, as registration of their names as trade marks ensures they don’t infringe the rights of others, and, allows them to have confidence in the use and promotion of their goods/services under their brands without being told they must rebrand.
What is the process for trade mark registration in Australia?
Registration is online via the IP Australia portal. Submitting an application is generally simple and quick, requiring information such as details of the intended trade mark (eg words, logo etc), the applicant’s details, contact details and billing information. Keep in mind, if you choose the DIY trade mark application path, the applicant’s details are published on a public database, and if mistakes are made some cannot be rectified later so ensure you do some reading/homework to understand those limitations.
If IP Australia approves the application, an initial two-month period will follow wherein third parties may oppose the registration of the mark. If no oppositions are filed during this time, the trade mark will automatically proceed to registration. The earliest that opposition period starts is 5 months after the filing date of the application.
Alternatively, an applicant may engage a trade marks attorney or similarly qualified professional to assist in the process, which will ensure no fundamental flaws that cannot later be remedied and will also provide access to advice and assistance in the case of objections or oppositions.
How long does it take to register a trade mark?
It takes a minimum of 7.5 months after filing of the application for registration to be finalised in Australia. This may of course be longer if there are any adverse reports issued or third party oppositions to defend.
Does trade mark registration apply worldwide?
No, trade mark registration is territorial. In other words, legal protections only apply in the jurisdictions for which trade mark registration has been granted.
Recommended reading: Can I register an existing business name as a trade mark?
Domain Names
Definition of a domain name
A domain name is an internet address for a website. Email addresses also use a domain name.
For marketing, customer engagement and brand building purposes, it is preferable to align your digital identity with your business name.
Domain names are granted on a ‘first come, first served’ basis and there is no automatic entitlement to a business name or trade mark as a domain name.
How to register a domain name
The registration system to licence a domain name is different from the registration processes for company and business names as well as trade marks. You need to go through a domain name registrar and license your domain name from them.
A domain name isn’t a requirement for starting a business, but you should register one if you plan to create a website or email addresses for your business.
Even if the business doesn’t yet have a website, it is possible to still register a domain name.
There are different types of domain names which have different requirements. Most local businesses use ‘.com.au’ domains which highlights the fact that the business is located in Australia.
The .au Domain Administration Ltd (.auDA) website has a list of Australian domain types such as ‘.com.au’ and ’.net.au’ available to buy from accredited domain name providers.
If you want to buy a ‘.com.au’ or ‘.net.au’ domain, you need to:
- be a commercial entity
- have either an Australian Company Number (ACN) or Australian Business Number (ABN)
- And, the name must somewhat match that company or business name (or a trade mark) or otherwise represent the nature of product or service being offered.
Note that a domain address doesn’t enable any ownership or legal rights over the words in the domain name. There are no proprietary rights in domain names, and they aren’t owned by the entity registering the name.
What a domain name means
The Australian domain name helps customers to geographically associate a website with Australia and makes it easier for people to find a business online.
When a business registers a domain name, they are given a licence to use for a limited period under specific terms and renewal requirements.
FAQs About Domain Names
Can I take action if someone is using my domain name in bad faith?
Yes. There are several courses of action including lodging an objection through the auDA Dispute Resolution Policy (auDRP) or negotiating with the third party. The auDA’s process was set up to deal with disputes relating to domains in the ‘.au’ space. Similarly, for names in other spaces (such as .com domains) a complaint can be filed through the UDRP. For Australian cases, not that bad faith is just one element to make out in your complaint. In simple terms you would need to show that (a) the domain was registered and/or has been used in bad faith, (b) you have rights in the particular name that is subject of the domain name and (c) the registrant has no legitimate rights in the name. Filing a complaint through these policies can be costly – albeit less costly than legal action, and, advice should be sought ahead of filing.
Recommended resources: How to register a domain name for your business website and email address
Domain names and trade marking in Australia
In Summary
This comprehensive guide to business names vs company names vs trade marks vs domain names in Australia is intended to highlight the different processes and procedures involved in company registration, identification, regulatory compliance and IP protections.
Should you need any further information or wish to discuss any aspect of the processes, you’re welcome to get in touch with Mark My Words Trademark Services. Our trade marks attorney, Jacqui Pryor, has decades of experience in the complex field of trade mark law and is well-versed in all aspects of brand protection both in Australia and internationally.
Contact us on 03 8288 1432 or email us through the website.
