Differences Between Registering A Business Name And Registering A Business Name As A Trade Mark

Registering a business name as a trade mark is arguably one of the most important fundamentals of starting a new business, yet so many people – including their professional advisers – overlook it.

The fact is, registering a business name is NOT the same as registering a business name as a trade mark.  Ignoring this may well be putting your investment and your business’s future at real risk.

What’s the difference between a registered business name and a registered trade mark?

Apart from the fact that one is a legal obligation and one is a choice, the key difference is that registering a business name does not give you exclusive rights or protections over the use of that name.

A business name is the name under which you (or your company) are – or will be – conducting business.  Registering the name of your business with ASIC is a legal requirement (assuming you aren’t trading under the name of the individual or entity which owns the business).  However, even after you have registered that business name, you don’t own the name nor do you have exclusive rights to uses it.

You need to register your business name as a trade mark in order to fully protect it.  And that’s an optional step. At the very least we encourage business owners to conduct trade mark searches before putting a business name to use to be sure the use of that name is unlikely to infringe a registered trade mark.

What happens if I don’t register my business name as a trade mark?

Imagine how you’d feel if you learnt that all your stressful days, sleepless nights, tears and cheers, hard-fought market share and considerable investment getting your new business off the ground was under threat because your business name actually belongs to someone else or infringes the rights of someone else?    

Even if you’ve registered your business name with ASIC and are conducting business under that name, unless you register that name as a trade mark with IP Australia, the door is open for someone else to register that same name as a trade mark.  Should that occur, you may not have to cease use if you are the first user of the name but by virtue of a registered trade mark that other person could also use the same name for similar goods/services to yours.

Sadly, failure to register a trade mark is a reality of the entrepreneurial space and it often comes at significant cost to business owners.

Check out this article on ‘How Registered Trade Marks Protect a Business’ to find out more. 

When to register a business name as a trade mark?

When an applicant registers a new business name on the ASIC website, a notification pops up which requires acknowledgement that a registered business name could infringe a trade mark. 

Many people are time-poor and we’ve probably all been guilty of ticking boxes without reading the small print – but this is a really crucial one.  It’s perhaps understandable that a busy entrepreneur may miss a detail, but it is surprising to what extent experienced professionals who advise small business owners overlook this critical admission. The pop up box also notes that the registered business name could infringe the common law rights of others, which is a separate matter to considering whether a the name might infringe a registered trade mark.

Registering a business name could infringe a trade mark.  When you read pop-up alert on the ASIC website slowly and carefully, the warning bells are clear.  Yet so many people tick the box without giving it a second thought.  The only way to be as sure as possible 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.

Key differences between registering a business name as a trade mark vs registering a business name

A registered business name:

  • Is a legal obligation
  • Does not stop another person from registering a similar business name (but they can’t register the same name)
  • Does not stop another person from using that exact name in the marketplace (even if they don’t register it with ASIC)
  • Does not give you exclusive rights over that name
  • Does not prevent someone else from registering that exact name (or a confusingly similar name) as a trade mark

On the other hand, registering your business name as a trade mark:

  • Is a choice
  • Provides you with the exclusive right to use the name for the goods/services that your business provides
  • Provides you with enforceable legal rights over the use of that mark, meaning you can take steps if others commence use of confusingly similar names in the marketplace for similar goods or services to yours
  • Means it becomes a tradeable IP asset which can be bought, sold, licenced etc

You’ll find more information on the above in this article entitled ‘What Rights do you have with a Registered Trade Mark?’

A last word on business name registration and trade mark registration

There are some instances where prior use of a business name may give a business owner some grounds to challenge the registration of that same name as a registered trade mark, but there are no guarantees. Particularly, once someone registers a trade mark theses challenges may need to play out in the Federal Court of Australia, which comes at a significant cost. Ensuring you register your business name as a trade mark before anyone else mitigates these risks and costs.

The best way is to engage a trade marks professional at the start of your entrepreneurial journey.  Join the many business owners from across the spectrum of industry who have come to MMW Trade Mark Services over the years for expert advice and practical support and enjoy the security of watertight legal protections for your valuable intellectual property.

Call our friendly and affordable trade marks attorneys, today on 03 8288 1432 or get in touch through our website.  We look forward to helping you take practical, timeous and smart steps to trade mark registration which could save you money and much heartache down the line.

Jacqui Pryor

Jacqui is a registered trade marks attorney with the Trans-Tasman IP Attorneys Board and is the founder and owner of Mark My Words Trademark Services Pty Ltd.

After being introduced to the world of trade marks in one of her first jobs after high school, Jacqui discovered she had a deep passion and interest for all things to do with protecting brands and intellectual property. She completed a Graduate Certificate in Trade Mark Law and Practices as well as a Diploma in Business Management and then set up her own business in 2011.

Her motivation for starting Mark My Words was to support SMEs which typically couldn’t afford such a service and while the company has grown in both size and reputation over the years, she has remained true to her founding principles of providing professional, friendly, reliable and affordable trade mark services to all.

Mark My Words now has a client list that spans businesses of all sizes across a range of industries. It provides advice and assistance on all types of complex trade mark registrations, infringements and opposition matters both in Australia as well as overseas.

Jacqui’s wealth of experience, broad range of professional qualifications and her ongoing participation in industry forums and networking platforms keeps her at the forefront of developments in the global trade mark arena. Her expertise in her field has also led to several nominations as a top individual trademark attorney by the World Trademark Review - the world’s leading trademark intelligence platform.

To keep up to date with the latest in the field of trade marks, follow Jacqui and MMW Trademark Services on Facebook.

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