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Hi Jasmine,
I only just had a quick look at your website, and it took a while to load for me so not sure if that’s just my connection. And, it looks like you just registered your business name a couple of weeks ago with ASIC? If you have only been going a couple of weeks, perhaps it is just needing some time for all the ads etc to start working?
There’s another forum thread on here, “Tell it to me straight” – if you pop your queries in there you might have a few more people see it and provide constructive feedback around your website and/or the ads?
All the best
Up0If you have registered a trade mark for your business/brand name you may be able to file a report if others use your trade mark in ad copy on Google (not simply as key words though). Depending on the circumstances and the name/ad in question etc, using another person’s business name could amount to conduct that is likely to mislead or deceive consumers, which could then be a breach of the Australian Consumer Laws.
Up0In terms of the order of things –
Purely my personal approach, not advice on this – I’d be inclined to have my business plan/marketing plan done first – as this will apply to the current location but likely to any other if the first doesn’t check the boxes, then perhaps inspect with agent, and see what might be possible in terms of rent negotiation. If the inspection fails your hopes and/or you can’t negotiate this may impact what you do next. If that all checks out, then perhaps discuss with the bank – who may very well want to see business/marketing plans and projections anyway, and, then, ‘admin set up’ things.
A slightly side note – you mentioned the ‘admin’ side of registering a company name. Keep in mind a company name doesn’t protect the name nor ensure it’s safe and available to use. If you have a name in mind, before registering the company with that name (which obviously costs money), check it’s not likely to infringe registered trade marks, and, that it’s available as a domain name and across social media platforms. It can be disappointing to register the company name only to realise you can’t set up social media/website by the same name, and certainly not great if you are forced to rebrand due to another person owning a trade mark. You can conduct your own basic TM searches at https://search.ipaustralia.gov.au/trademarks/search/quick (look not just at identical names, but anything that looks or sounds similar to the one you want to use for your shop – where confusion could occur), and, https://namechk.com/ can help find names available across social media/domains etc.
Good luck
In any case, all the bestUp0manuca, post: 271833, member: 120702 wrote:I’m preparing to start this grey importing business for premium brands. I don’t see any major problems while I can see others doesn’t have any issues in Australia for selling grey imported goods.
Q. Do I have to consult with an attorney for each brand before importing into Australia?Per the post I made above, there are a lot of things to consider. Some people don’t have issues, some people do. It can be done but needs to be done carefully and taking into consideration a lot of things.
You do not necessarily have to consult with an attorney for each brand, but it could be a good idea. You want to check whether the trade marks are registered in Australia and whether your promotion of those brands could be trade mark infringement, also whether your use could be misleading to consumers and things like risk that you will carry because you cannot rely on manufacturer warranties when parallel importing.
I’d be happy to hear from you if you do wish to obtain further advice. You can reach me at [email protected]. If you would like to provide some detail about the brands etc I can provide an estimate for advice/assistance.
Up0Hi [USER=120603]@TM1[/USER]
This is a tricky thing to answer on a forum like this, as there are many factors involved depending on the particular product/brand and all surrounding circumstances. The following is for information only and is not advice as each case can be different.
Essentially it sounds like you would be a parallel importer of the goods as you don’t have permission from the manufacturer in USA. Parallel importing is legal in Australia, but is not without risk. The ACCC has some good information to consider: https://www.accc.gov.au/business/treating-customers-fairly/selling-parallel-imports
Putting aside trade mark matters (which I will discuss below), you as the importer would essentially carry the risk of liability in the product if not selling with authorisation – so, for example, if something bad happened with a customer consuming the product you couldn’t necessarily go back to the manufacturer for help or compensation. For these reasons, ACCC suggests that if you are a parallel importer it is made clear that’s the case when selling the product, and ensuring Australian customers know that any warranties the manufacturer might usually offer won’t apply (although, you can of course choose to mirror those some warranties).
From the trade mark/IP perspective. It gets complex. The rightful owner of a trade mark in Australia is typically the person/company to first use the trade mark in Australia or the first to apply for the trade mark, and, if you were to file a trade mark application and it is approved it then goes through an opposition period where others could object if they think you/your business is not the rightful owner or there is any bad faith in the filing. Without more detail about the product/brand involved it’s hard to say whether you would be able to file in your ownership or not from a trade mark law perspective.
In addition to trade marks, if the brand has graphic logos these would be covered (automatically) by copyright laws. So, even if you did register the trade mark some times original manufacturers overseas might rely on copyright in graphics/logos to try and get you to stop selling a parallel import product. Again, it’s very much situation dependent.
In short, yes it’s legal to import without permission but this doesn’t mean there are not risks and it doesn’t mean the original manufacturer will like it. I hope the above helps, and particularly the ACCC guidance I hope is helpful.
Up0[USER=55789]@LunaMarga[/USER]
Hi Chelle,
I am so sorry I didn’t see this earlier when Paul tagged me. I am very pleased you got a resolution so quickly.
As to the business name with ASIC – is it the same person you contacted, or is that separate?
Typically speaking, if you do find someone using the same name as your trade mark (or something confusingly similar) you need to look at several things to determine if you are allowed to ask them to stop:
a) Are they using the same or similar name in Australia?
b) Are they using the same or similar name for the same or similar services to those covered by your trade mark?
c) Did they start using the same or similar name before you first used yours or registered the trade mark (which ever is earlier).If the business name you found with ASIC is a separate person to the one you already contacted, keep the above in mind (obviously they’re in Australia in that case), however, if they have not started using that business name yet it can’t infringe – trade mark infringement can only occur when someone puts the name to use as a trade mark for the same/similar services etc. So, if it’s merely a registered business name it doesn’t infringe yet, and, you can’t tell what sort of product/service is involved yet. Therefore you can either monitor to see what they do, or, consider (subject to specific review/advice of your situation and the business involve) putting them on notice that use for similar services to those covered by your trade mark registration may infringe.
As noted, very happy to see you had a good outcome with the person using it on social media – but keep the above in mind should the situation arise again in the future. Demanding someone stop use of a name if it turns out you don’t have the right to do so can backfire so I hope the above tips help for the future, and, again sorry I didn’t see the post earlier
Up0This website may also help – https://ablis.business.gov.au/ – you can search based on the industry to help figure out which licences/registrations etc you will need.
Up0A quick add on to the above comments… side jobs seeing 10-20k per year would likely be deemed a business by the ATO. If you’re adding the revenue to your tax return it suggests that’s your profit amount? I would think – and definitely speak to an accountant to confirm – this would fall into a business category not hobby, such that you perhaps should have at least had an ABN as a sole trader before now… which may have meant being able to claim other business expenses I would think?
Only an accountant that’s familiar with all of your income (business and wages), expenses, personal assets etc can really advise best structure for tax effectiveness. Pty Ltd company tax may be less than your personal marginal tax rate on wages so there could be a tax saving BUT it’s also more costly to run a company structure than sole trader in terms of registrations/annual returns etc so it has to be balanced against the tax saving.
James Millar is a member here and knows his stuff. Can’t speak to his fees but would be well worth a chat in this situation – his website is at https://360partners.com.au/Up0Hi Sai,
To the ‘deep discounts’ that Bert mentioned – e.g. your products all have a ‘slash through’ price and the current price. The ACCC has some information around this practice at https://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide/pricing/two-price-comparison-advertising
When selling in this manner, indicating the product was originally one price and is now cheaper/on sale, there are some guidelines at that link to help ensure it’s done in an approved manner and is not misleading consumers.
I can see you have already taken a lot of the above suggestions on board, which is great and I agree the site has good bones and is on its way
I think a ‘grammar’ check is a good idea. If you are not in a position to hire a professional copywriter at this stage, perhaps even a family member or friend that can look at the content with fresh eyes to help ensure everything reads as best as it can.
All the best
Up0I prefer a shorter name too (says me with the really long company name haha), and not one that’s too descriptive (e.g. plush baby box). A descriptive name like this can be more difficult to ultimately protect as exclusively yours.
It can be helpful to check out the availability of your short list of names as a business name, domain name, social media profile names and trade marks. You want to make sure your chosen name doesn’t infringe trade marks but also that ultimately your chosen name can be registered as a business name/domain name etc. Sometimes checking availability across those platforms will help shorten the list.
Up0As Rowan said, if you are acting as a sole trader the ABN connects to you and you don’t need another one for a business name. You can go to asic.gov.au to register your business name. It will ask for your ABN and then it will link that business name to you/your ABN. In the future if ever needed you can register more business names, all with that ABN and they will link up.
If you register a company, then that is different. A company is a separate legal ‘person’ to yourself so in that case the Company would get its own ABN and could register business names that link back to that company and ABN.
Up0Hi Emillizo,
Trade mark registration can be complicated so ‘advice’ can only be given after full review of the situation… but, for information purposes:
The class system is followed by most countries around the world. So, your class number will be the same in Australia and US. If you file through the Madrid, it will automatically claim the same goods/services that you have entered in Australia for the other countries you designate. US is more pedantic about the way you claim the goods/services though. Also note an international application under the Madrid Protocol is dependent on your Australian trade mark for five years. If your AU mark receives an objection or lapses for any reason in those five years it would affect your international application under the Madrid system too.
Once you file in Australia you have what is called a priority period to file overseas. this is 6 months. Basically, if you file into other countries (using the Madrid system or national applications) within 6 months you can claim your Australian filing date in those other applications. This does not mean you are protected in those countries, but, the offices will basically treat your international applications as though filed the same date as in Australia even though physically you are filing later. You can still file overseas after 6 months but would not have the benefit of claiming your Australian filing date.
Hope this helps
Up0I agree with the above. Your own experience/background would be relevant to the sort of online business you might choose to buy. If you do choose to buy an online business that sells product, it’s also important to look at ‘what’ you are buying at what price. I know there are a few out there offering to sell ‘businesses’ but are perhaps more accurately a ‘package’ of developed things like website, domain name, social media handles etc.
For example, if someone says they can sell you a business that comes with website, social media handles, customer database analyise whether the ‘brand’ name that comes with that is registered as a trade mark so actually safe to use; analyise those customers and their ordering history (are they likely to be repeat customers?) and also compare cost of purchasing these things against the cost of doing it yourself.
Up0Bruce Josephs, post: 270998, member: 119015 wrote:I would always suggest that you check that you want is available
1. as a business name on ASIC
2. as a domain (Website) name .com.au and if you anticipate growing outside of Australia, a .com as well.
3. as a Facebook name
4. as a twitter handle
5. as a 1300 phone number if possibleIn addition, a check that the name is available for trade mark registration; or more importantly than that, make sure the proposed name won’t infringe a registered trade mark. As Vanessa pointed to in her article names can be intellectual property (trade marks particularly). You must (legally) register a business name with ASIC if operating under a name other than your own, but that does not necessarily mean the business name is safe to use. That’s where trade marks come into play. If the business with the Facebook name is in Australia, with a trade mark, in the same industry then this could be an issue; adding “AU” or similar wouldn’t necessarily avoid the issue.
I don’t think the Facebook name being slightly different is an issue from a marketing perspective, but could be an issue if the existing user has ‘rights’ to that name in Australia…
Up0Hi Andy – cannot say anything about the tax implications etc (you may need to speak to an accountant about that), but, to be ‘named’ as part owner you will need to have a different structure.
A sole trader implies it is a single person operating/owing the business. From your post it sounds like you may need to look into a partnership structure. This would mean you are both seen as partners in the business; you would get an ABN for the partnership and transfer the business name from her sole trader ownership to partnership. You would want a good partnership agreement that discusses each person’s responsibilities, obligations etc. Even thought it is with your spouse, a partnership agreement is a good idea.
I think for your circumstances a chat with a lawyer who can help with the agreement and an accountant who can go over the tax and financial side is probably worth while.
All the best
