The difference between a business name and a trade mark

Choosing a business name to build your brand is one of the most important decisions you will make when starting a business.

Whether you are offering a product or delivering a service, you rely on your business’ reputation to attract new customers and to grow your business, which is why brand protection is very important.

When it comes to registering your business name, it can be confusing as to what type of registration is most appropriate – a business name, a trade mark or both?

There is a common misconception that registering your business name gives you the same rights as having a registered trade mark over your business name. This is not the case.

Business name registration

A business name is the name you trade under and identifies who you are to customers and other businesses. Unlike a registered trade mark, it does not give you any protection against another person or entity using a similar business name.

You can apply for a business name through the Business Registration Service website. Before you register, you should:

  • have confirmed that your business name is available;
  • have an Australian Business Number (ABN) (or be in the process of applying for one); and
  • conduct a trade mark search to ensure that your chosen business name does not infringe someone else’s registered trade mark.

You must register your business name if you conduct business under a name that is not your own. However, simply registering your business name does not prevent someone else using a very similar business name. For that, you should register your business name as a trade mark.

Trade mark registration

A trade mark is your registered brand, used to distinguish your business from other products and services and can be a letter, number, word, phrase, logo, image, sound, movement, shape, or scent. Unlike a registered business name, a registered trade mark may give you the right to take legal action to prevent others from using your trade mark, so it is important to register your trade mark as soon as possible.

You can apply for a trade mark online at IP Australia. Before doing so, you should make sure you know:

  • the type of trade mark you would like to protect;
  • whether your trade mark is available; and
  • the classes of goods and services in relation to which you would like to protect your trade mark.

If you happen to find a trade mark similar to yours that already exists, it may still be possible for you to register your trade mark and for both of the trade marks to coexist, for example if the goods and services they relate to are different, or if you can prove that you have been honestly and concurrently using your trade mark without any issues.

Conclusion

If you want to protect your brand that is identified by your business name, the best thing to do is register your business name not only as a business name, but also as a trade mark with IP Australia.

Intellectual property law can be complex and confusing so we recommend you speak with an experienced lawyer who can help you.

If you or someone you know wants more information or needs help or advice, please contact us.

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