One of the most exciting parts of starting a new business is selecting a name. It will be your badge, your business’ brand, and will set you apart from competitors. Therefore, it is very important to ensure that your proposed name is available for you to use and protect before you spend money on branding and marketing. This article will explain how you can confirm your business name can be trade marked.

Registered Trade Marks

A registered trade mark gives you the exclusive right to use that name in relation to a particular class of products or services. If someone else uses your registered trade mark (or vice versa), you can take legal action against them for infringing your rights. Even using a similar name to a registered trade mark can constitute infringement.

Because of this, it is critical to ensure that you are not infringing another trade mark with your proposed business name. You can confirm this by performing a search of IP Australia’s Trade Mark Register. The new Trade Mark Search came into effect in February 2017, replacing the Australian Trade Marks Online Search System (ATMOSS).

Trade Mark Classes

If your proposed business name has already been taken, but that company operates in an unrelated industry, you may not be infringing upon their rights by using the name. When you register a trade mark, you register it in classes of goods or services. If the trade mark has not been registered in the class relevant to you, it may be available for you to register and use.

IP Australia determines these classes, and they are used to indicate your business’ primary functions. To determine what class your business’ activities fall into, perform a Trade Marks Classification search.

Quick Search

To perform a search, input your proposed business name in the ‘quick search’ feature of the Australian Trade Mark Search. The field is on the home page and is the default search function for the register. You will see results across all trade marks that contain your exact search word or phrase.

As part of your quick search, we recommend adding an asterisk within the search field to produce wildcard results. This will give you more results for any trade marks that contain your search words.

For example, searching for the word ‘techno’ will only produce results containing that exact word. Alternatively, performing a quick search for ‘techno*’ will yield many more results, including longer words such as ‘technology’ or ‘technological’.

The quick search function searches across all classes. If you find a similar result in the quick search field, you should check the registered class of that trade mark. You can then perform an ‘advanced search’.

Advanced Search

To perform a more detailed search, select the ‘advanced search’ feature. Insert your proposed business name into the ‘word’ box. If your business name has multiple words, insert each word separately into a different box.

If the order of your business name matters or you use a word more than once in your business name, search instead using the ‘word phrase’ function. This will produce results for the phrase as a whole, rather than the individual words themselves.

In the ‘class’ field, insert the class number in which you will register your trade mark. Ensure that you list the field next to ‘class’ as ‘associated…’. Once you hit the search button, your search will produce all results in the selected class, or any associated class.

Inactive or Unused Trade Marks

One important thing to remember when searching for your business name is that you must renew and use your trade mark for it to remain actively registered. A trade mark owner or licensee must actually be using the mark to maintain their rights to it.

If a trade mark owner is not using their registered trade mark, you can make an application to IP Australia for the removal of the trade mark from the register for non-use. If this application is successful, the owner will lose their rights, and the trade mark would be available for registration again.

A registered trade mark is active for 10 years, after which you must renew it. If you find that a business name that you want to use was previously registered but is now inactive, you may still be able to use that business name. You can exclude inactive trade marks as part of your advanced search by selecting the ‘exclude inactive’ feature.

Key Takeaways

A business name is one of the most important ways for you to distinguish your business from competitors. Before spending a lot of money on branding and advertising, it is vital to ensure that you can trade mark your proposed business name. If you fail to examine a proposed business name properly, you run the risk of a trade mark owner enforcing their rights against you. Performing the appropriate searches in the early stages will ensure you do not run into any issues down the track.

If you would like to register a trade mark, contact LegalVision’s trade mark lawyers on 1300 544 755 or fill out the form on this page.

Maya Lash
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