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The difference between a business name and a trade mark

Choosing a business name to build your brand is one of the most important decisions you’ll make when starting a business.

There is a common misconception that registering your business name or purchasing a domain name gives you the same rights as a registered trade mark, but it does not.

This article provides a guide on the difference between a business name and a trade mark and the best way to protect your business name.

Business name registration does not confer the benefits that a trade mark does

When it comes to registering your business name, it can be confusing as to what type of registration is most appropriate; a business name, a trade mark or both? There is a common misconception that registering your business name or purchasing a domain name gives you the same rights as a registered trade mark, but this is not the case. A trade mark, on the other hand, will give you exclusive rights to use that mark, and prevent anyone else from doing so.

A business name will be the name you trade under and identifies who you are to customers and other businesses. It is important to note that registering a business name does not stop someone else from using it. It is also very important to ensure that your business name has not already been trade marked.

A trade mark is your registered brand, used to distinguish your business from other products and services and can be a letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. It is vital to understand that a trade mark gives you the right to take legal action to prevent others from using your mark, so it is important to register your trade mark as soon as possible.

You can apply for a trade mark online at IP Australia. Before doing so, make sure you know:

  • what goods and services you want to protect
  • the type of trade mark you need, and
  • whether your trade mark is available.

If you happen to find a trade mark similar to yours that already exists, it may be possible for both of the trade marks to coexist, if the goods and services they relate to are different. In some instances, it may also be possible for two similar trade marks with similar goods to exist. For example, Frito-Lay’s Twisties and Aldi’s Cheezy Twists. This is because the words “Cheezy Twists” and “Twisties” are different.

The importance of protecting your business name

Whether you are offering a product or delivering a service, you rely on your business reputation to attract new customers and to grow your business, which is why brand protection is very important. A strong brand provides a way for your customers to identify your business.

You can apply for a business name through the Business Registration Service Website. Before you register, make sure you have:

  • determined your business structure
  • an Australian Business Number (ABN) or are ready to apply for one
  • confirmed that your business name is available.

As mentioned above, registering a business name will not prevent someone else  from using it. However, using a business name that is similar to someone else’s registered trade mark could result in legal action being brought against you. This is why you should always conduct a trade mark search before deciding on a business name and seek legal advice from an experienced lawyer if unsure.

If you want to protect your business name and have exclusive rights to it, you’ll need to protect it with a trade mark. This will help you:

  • protect your business name and stop others from trading with it
  • provide you with exclusive use of that trade mark throughout Australia, and
  • give your business name protection in all Australian states and territories for an initial period of 10 years

Conclusion

It is clear from the above discussion that registering your business name does not provide you with the same benefits and protection that a trade mark does.

If you want to protect your business name and prevent others from using it, the best thing to do is register it as a trade mark.

If you or someone you know wants more information or needs help or advice, please contact Ian Tait on 08 9422 8111 or email buslaw@taitlegal.com.au.