A business name is a legal requirement when you are trading by any name other than your own personal name. A trade mark is not a legal requirement, but in my opinion should be considered.
When you register a business name you are given the right to trade under that name by the Australian Securities and Investments Commission (ASIC). However, when registering your business name you will be informed by ASIC that you should ensure that your chosen business name does not infringe any registered trade mark in Australia. This is your responsibility as the business owner.
Registering a trade mark is not a compulsory process to go through but certainly a recommended one. By registering a trade mark you are provided the right to use that particular trade mark (which could be a name, logo, slogan or many other things) for your goods and/or services. This means no one else could take trade-mark infringement against you, but, where justified, you could actually stop others from using the same or a “confusingly similar” name or logo to that which you have registered as a trade mark.
A registered business name does not provide you with any exclusive rights to that name, or the right to stop others using the same or similar names. For example, you might register “ABC SYSTEMS” as a business name and you might offer services of systemising offices. Another person could register a business name of ABC SYSTEMS AUSTRALIA for the same sort of business and unless you had a particularly exhaustive reputation in your name you’d be pretty powerless to stop ABC SYSTEMS AUSTRALIA from using this name unless you had also registered the trade mark.
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Worse still, the similarly named business could open shop in the same location as you and without the registered trade mark it would be difficult (if not impossible), not to mention costly, to take any action.
There are many benefits to registering your business name as a trade mark. So, even though it’s not a legal requirement to do so, I certainly encourage business registrants and owners to consider doing so. Think of trade mark registration as insurance over your business name; a way of protecting it and ensuring you are legally recognised as the true owner of that name.
At the very least, if you are considering a new business name, conduct a trade-mark search before you register your business name through ASIC. This can help ensure that your chosen name is not infringing any existing rights.
I would encourage business owners to have a professional conduct these searches. Too often I have clients run into problems with the owners of trade marks, even though they carried out their own searches at the time of adopting business names or brand names. If you’re not familiar with the trade-marks database, and trade-mark laws in operation it can be difficult to accurately assess the results of a trade-mark search that you might carry out yourself.
Have you registered both a business name and a trade mark? Why or why not?