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  • #979997
    GSanders12
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    I searched up on the ABN website search and there are two other businesses that share the business name that I desire to be as my start-up that i have been working on for quite some time .. Both are listed as trading names in different states from mine.

    They are also in the same industry as mine. Is there any way around this at all that will be possible under Australian law ?

    Thank you

    #1119003
    kathiemt
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    I think this is why the business names register has become national rather than statewide. The internet has made the world a smaller place and it must be confusing to authorities when there is more than one business with the same name.

    I’m sorry to say but this is probably something you should have researched as soon as you decided upon a name before making any plans around the business name. And even then, when registering the business name, have 1 or 2 backup names just in case. I know that I’ve had to have back up options in case I couldn’t have my first choice.

    Is there a way to do a variation of it perhaps?

    #1119004
    GSanders12
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    Hey, thanks for the reply. The thing is, theres two companies with the same name in the same industry, however.. they are in different states! :O

    Could this mean there is some hope in having the name? I am from Sydney NSW, and the other two are from SA and QLD.

    #1119005
    kathiemt
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    My guess is, they registered individually in their own states, before the names register became the national one. You can try registering it at ASIC but be prepared that it might not get through and make sure you have back up choices just in case. Oh, and don’t leave it any longer – act now!

    #1119006
    MyGreatIdea
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    If the name you are wanting is unique (in that it isn’t anything generic in description), I would suggest you do a trademark search first. It is possible that one of the companies trademarked the name, and the second company registered in a different state without checking the trademark.

    Wendy :)

    #1119007
    GSanders12
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    Wow! Thank you so much. I didn’t realise there was another place to get a business name registered other then the ABN site.

    Turns out its available.
    Isn’t there a certain time period to wait and I will do it as fast as I can :) Starting now.

    Also, how long does it take to actually get your name registered?

    Kind of an off topic question: What sounds better in a business name, Luxury or Luscious ?

    #1119008
    JacquiPryor
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    didn’t realise there was another place to get a business name registered other then the ABN site.

    ASIC is the only place you register a name through these days. The ABN site simply lists what businesses/people/companies are associated with ABNs. You’ll need your own ABN in order to register the business name through ASIC. The system (which has only been around since the end of May) is experiencing ‘issues’ at times, so, a number of people have complained that it’s taking too long etc.

    As Wendy mentioned, you should also ensure that either of the businesses you’ve found with the same name haven’t sought trademark protection. A trademark will ‘trump’ a business name in terms of whether you can actually use the name you’ve chosen. If you commence use of a name, for the same/similar products or services to a registered trademark then you may be found to be infringing that trademark.

    The thing is, theres two companies with the same name in the same industry, however.. they are in different states!

    Are they actually companies, or are they business names? If they are business names, then as Kathie advised it’s likely they registered in their respective states before the national system came into place. If they are companies, is it possible they are actually affiliated with one another? E.g. different branches of the same company?

    If you have trouble registering the business name due to same/similar names existing sometimes you can get around it by making changes to your business name – purely as an example – “Sydney’s Business Name” or “Business Name by Sanders” etc. (this wouldn’t necessarily avoid trademark infringement though so still check on that…)

    #1119009
    GSanders12
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    Oh ok, but the ASIC search says the business name is avaliable. However two companies with the same name have their abn numbers.

    So since ASIC says the name is avaliable, I’m guessing that means its NOT trademarked?

    Also, is it necessary at the beginning to get a business name ? I’ve heard it’s only mandatory to get an abn number first and get the name later.

    Thanks so much for your help guys.

    #1119010
    kathiemt
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    GSanders12, post: 133816 wrote:
    So since ASIC says the name is avaliable, I’m guessing that means its NOT trademarked?

    Also, is it necessary at the beginning to get a business name ? I’ve heard it’s only mandatory to get an abn number first and get the name later.

    Thanks so much for your help guys.

    The onus is on your to do the trademark search, or get someone to do it for you. Don’t take it for granted it’s available.

    The site to go to, to do your own search is http://www.ipaustralia.gov.au/

    In this case ignorance is not bliss and even if you were allowed to register the business name, if it infringed on someone’s trademark they could stop you using it. Do all the research first and put everything in place before you start using the name or getting it printed on anything.

    #1119011
    Yike Ma
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    GSanders12, post: 133816 wrote:
    Oh ok, but the ASIC search says the business name is avaliable. However two companies with the same name have their abn numbers.

    So since ASIC says the name is avaliable, I’m guessing that means its NOT trademarked?

    ASIC allows similar names to co-exist on the register. Unlike trade marks, business names do not provide proprietary rights for the use of the trading name.

    More information is available in the below link:
    [URL=”http://http://www.ipaustralia.gov.au/understanding-intellectual-property/ip-for-business/differences-between-trade-marks-business-and-domain-names/”%5Dwww.ipaustralia.gov.au/understanding-intellectual-property/ip-for-business/differences-between-trade-marks-business-and-domain-names/%5B/URL%5D

    When ASIC approves registration of a business name or a company name, ASIC does not check if it is registered as a trade mark.

    You can follow the link below to check if it has been trademarked:
    http://http://pericles.ipaustralia.gov.au/atmoss/falcon.application_start

    GSanders12, post: 133816 wrote:
    Also, is it necessary at the beginning to get a business name ? I’ve heard it’s only mandatory to get an abn number first and get the name later.

    Technically speaking, the registration of a new business is not legally compulsory. However, registering your business is highly recommended to avoid obvious problems, like two or more people with the same name trying to run their businesses in the same area.

    ABN is compulsory because of taxation purpose.

    More information is available at http://services.business.vic.gov.au/vbmk/viewcontent.do?mylink=jdbc%3Aodbc%3AFaq%231072&infotype=FAQ&from=browse&pk=1072&cat=Registration

    #1119012
    JacquiPryor
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    Hi Again :)

    Oh ok, but the ASIC search says the business name is avaliable. However two companies with the same name have their abn numbers.

    They might have told the ABR that they were ‘trading’ under certain names to associate with the ABN without officially registering… If you’d like to send me a direct message of what the name actually is I’m happy to look a little further & hopefully be able to clarify further for you. On the ASIC search are you looking at all company/business names, or just current registrations? Or, just business names but not companies? Make sure you search for all organisations/names.

    So since ASIC says the name is avaliable, I’m guessing that means its NOT trademarked?

    Not necessarily. ASIC and the trademarks office are two entirely separate departments and don’t ‘talk’ to each other. So a search on ASIC means nothing in the trademark world and vice versa. You can do your own search on the trademarks database here. Be mindful that trademarks are ‘judged’ on a much broader scale than whether the exactly identical name exists. If your proposed name has a main/unique component search just on this – leaving out any additional descriptive matter. For example, if your business name was to be Sanders Web Design search just on Sanders…

    Also, is it necessary at the beginning to get a business name ?

    Yes – if you are trading by any name other than your own personal name you must register at least the business name.

    #1119013
    JacquiPryor
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    Technically speaking, the registration of a new business is not legally compulsory.

    What I find interesting (slightly confusing for new business owners) – is that at the same website it clearly states you must register unless trading by your own name/company name. – Here. (Well, this is in Victoria so not where GSanders is from… ) But also in the ASIC information who are now looking after business names the same advice is given – unless trading by your own name/company name then yes, you’ll need to register the business name.

    #1119014
    kathiemt
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    If you want to use a business name then you must register it. You can’t open a bank account in a business name without proof that it’s been registered. Will be pretty awkward for you if people send you cheques and you can’t bank them.

    But do the research first – no point in registering it if it infringes on a trademark.

    #1119015
    Kennethti
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    Most of the questions here have been asked, but I would like to plug an article I wrote about the difference between a Business name and a Trade Mark.

    Some of the information is a little old, but generally still relevant.

    http://www.trademark-lawyer.com.au/2010278/dont-get-confused-business-names-and-trade-marks

    #1119016
    The Copy Chick
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    Given the system is now moving to a national register, as opposed to a state register, if Business A has the same name as Business B (who is registered in another state), can Business A trademark their name – assuming neither business has previously applied for a trademark – and how will this affect Business B?

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