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  • #995282
    t.baker
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    Hi there,

    I am currently looking at starting my own online publication & have the perfect name in mind however, upon searching online someone registered a business with what I have in mind included in their name (a month ago might I add! Always the way).

    For example:

    They’ve registered: “She Says & He Says”

    I am looking to register “She Says”

    My plans are to create a publication & there’s is a directory. Similar content.

    Am I okay to go ahead with plans for “She Says” or should I be looking for a new name?

    Thanks in advance,

    Tara

    #1200921
    MichaelF
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    As long as you aren’t trying to act like them, or lead your customers to believe that you are them, you should be fine.

    #1200922
    Rohan@TD
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    [USER=20176]@JacquiPryor[/USER] – Sounds like something you’re an expert in.

    #1200923
    bb1
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    Rohan@TD, post: 238136, member: 78618 wrote:
    [USER=20176]@JacquiPryor[/USER] – Sounds like something you’re an expert in.

    As Rohan said.

    But just from a potential consumer / searcher of your service, could there be confusion, and I end up on the other website instead because of the similar names. you could be loosing clients

    #1200924
    JacquiPryor
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    Hi Tara

    Business names (and company names) are registered through and essentially regulated by ASIC. They’ll allow very similar names for very similar business types. A business name is kind of like an alias for whoever is carrying on the business – so that other people can locate the business operator or authenticate them if needed. So, as long as the names are at least a tiny bit different they can co-exist on the ASIC registers.

    The question of whether you are ‘ok’ to trade with a similar name for a potentially similar business or product is not a business name question. Does the other company have a trademark? If yes and the names are similar and the product/service similar then they might have grounds to suggest your use of that name is an infringement on their trademark.

    If they haven’t registered a trademark then you could register yours which would provide some safety in the use of the name – but, if they formally commenced use ‘in the course of trade’ before you you might not be able to later stop them even if you have the trademark registration as they might have a prior use defence to infringement claims. The fact you know they are a directory business suggests they’ve already started use of the name such that this might be relevant.

    And, as Bert said – consider the marketing side of things. Even if we could rule out whether it is or is not ‘safe’ to use the name – if confusion is likely between the two then you might lose business to the other. So – legally you might be ok but commercially will it be worth this risk of losing business to the other?

    I’d also note that if the other business has operated in the same space for a while by similar names then even if they don’t have a registered trademark if they could substantiate a reputation in the ‘brand’ they might have grounds for action under other areas of law.

    You’ve provided example names which makes it difficult to provide precise comments. If you would like to send a PM with the exact names/business in mind I am happy to comment further and can also check on the trademark side of things :)

    Every ‘name’ case is different and should be assessed on its own merits, both legally speaking and commercially speaking so the above is provided as information and should not be taken as legal advice.

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