The difference between a business name and a trademark

Business name registration isn’t a registered trademark

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

There is a common misconception that registering your business name or purchasing a domain name gives you the same rights as a registered trademark. However, it does not!

This article provides a guide on the difference between a business name and a trademark and the best way to protect your business name.

Business name registration does not confer the benefits that a trademark does

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 trademark or both? There is a common misconception that registering your business name or purchasing a domain name gives you the same rights as a registered trademark, however this is not the case. A trademark, on the other hand, will give you exclusive rights to that mark.

A business name will be the name you trade under and identifies who you are to customers and other businesses. It is important to note that registering a business name does not stop someone who has registered the name as a trademark from using it. It is also very important to ensure that your business name has not already been trademarked. You can check this by using the Australian Trademark Search on the IP Australia website.

A trademark 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. It is vital to understand that trademarks give you the right to take legal action to prevent others from using your mark, so it is important to register your trademark as soon as possible.

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

• what goods and services you want to protect
• the type of trademark you need, and
• whether your trademark is available.

If you happen to find a trademark similar to yours that already exists, it may be possible for both of the trademarks to coexist, if the goods and services they relate to are different. In some instances, it may also be possible for two similar trademarks with similar goods to exist. For example, Frito-Lay’s Twisties and Aldi’s Cheezy Twists. This is because the Trademark words “Cheezy Twists” and “Twisties” are different.

It is obvious from the above discussion that the area of Intellectual Property law can be complex, we strongly recommend you seek advice from one of our experienced lawyers.

The importance of protecting your business name

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. A strong brand provides a way for your customers to identify your business.

You can apply for a business name through the Business Registration Service Website. Before you register, make sure you have:

• determined your business structure (for example, a sole trader, partnership or company);
• an Australian Business Number (ABN) or are ready to apply for one; and
• confirmed that your business name is available.

As mentioned above, registering a business name will not prevent someone else who has registered the name as a trademark from using it. Using a business name that is similar to someone else’s registered trademark could result in legal action being brought against you. This is why you should always conduct a trademark search before deciding on a business name and seek legal advice from an experienced lawyer if unsure.

If you want to protect your business name and have exclusive rights to it, you’ll need to protect it with a trademark, this will help you:

• protect your business name and stop others from trading with it;
• provide you with exclusive use of that trademark throughout Australia; and
• give your business name protection in all Australian states and territories for an initial period of 10 years

Conclusion

It is clear from the above discussion that registering your business name does not provide you with the same benefits and protection that a trademark does.

If you want to protect your business name, the best thing to do is register it as a trademark.

The area of intellectual property and trademark law can be complex and confusing. Talk to LawBase today, our trademark lawyers will help you get everything right on the first go!

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