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James Millar
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Believe it or not there are several different bodies of law that cover the use of trading names and brands within Australia. The majors to be aware of are

1. The new national business names registration legislation. Personally I think its a good thing that they are now regulated by one body and can no longer be replicated across different states.

2. Trademark law.

3. Competition and Consumer Act 2010 (the new Trade Practices Act) – misleading and deceptive conduct. Particularly in representing a business by name that you are not actually entitled to.

4. Common law tort of “passing off”. Like 3 above – relates to circumstances where consumers are essentially mislead into transacting with an organisation that is different to that intended in the name.

If you intend on creating a business that may have some degree of name conflict then it would be wise to contemplate these.


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