Reading time: 4 minutes

Picture this: You’ve just started up your own business – a wedding planning agency specifically for destination weddings. Then you hear that someone is setting up the exact same business. Can you stop them from doing so?

Get Your Facts Straight

Are you sure they have copied your idea? Is your business, product or service so unique that it couldn’t have possibly been a coincidence that someone else started the same business? Even so, the unfortunate reality is that you can’t stop someone from starting the same business as you. Think about it – if there was only one company for each business idea, how would that work? However, there are some ways you can prevent other people from copying aspects of your business.

So when is a business considered to be the same as another one?

  1.    It must be in the same industry;
  2.    It must target the same market; and
  3.    It must have the same name.

If you find out that someone is starting the same business as you, try to be the first one to own it legally. You may not be able to stop them from copying your idea but what you can do is stop them from using the same business name or logo design as you.

Register Your Business Name

Got your fun, unique name for your business with an eye-catching logo to go with it? Great! Register your name with the Australian Securities and Investments Commission (ASIC). However, having a registered business name does not, in itself, give you any legal rights to that name.

Register your Trade Mark

A registered trade mark is a legally enforceable right to the exclusive commercial use of the trade mark for the goods or services for which you registered. Registration allows the owner of the trade mark to prevent any unauthorised use, Australia-wide, for the same or similar goods or services.

Register your trade mark and business name with IP Australia. Make sure your trade mark is new and distinctive so that people can recognise it and everyone knows you’re the real deal. An important aspect of the distinctiveness requirement is to steer clear of using descriptive words. For example, using geographical terms (‘Melbourne Café’) or generic last names (‘Smith’s Café’).

The trade marks office may accept such descriptive names if there is sufficient evidence of extensive use of the name over time, for example, Johnson & Johnson healthcare products. Although a common last name, this was accepted as a registered trade mark because of their reputation and long history. The same can be said for Philadelphia cream cheese. So clearly this is not a hard and fast rule, however, as you are just starting out your business, it is better to avoid using descriptive names just in case your business doesn’t start out quite as popular as Philadelphia!

Now you are ready to apply for a trade mark online at IP Australia and take the first steps in protecting your business.

Monitor for Trade Mark Infringement

Once you’ve registered your business name, watch for trade mark violations by monitoring your local area, and keeping your eye out on social media. That way, if anyone else tries to start the same business as you, in the same industry, targeting the same market, and using the same name, you will be the first to know. 

Sometimes, people are not as bad as we think they are. Maybe they haven’t intentionally copied your name, and a simple email may set things straight. They may even appreciate the notification and change their name to avoid any confusion.

Key Takeaways

  • To be considered the same business, it must be in the same industry, targeting the same market, and have the same name.
  • Be proactive! Protect your new business by registering a business name with IP Australia before someone else does.
  • Watch out for copycats. Be the first to know about anyone starting the same business so that you can address it quickly. 

Still convinced someone has copied your business? If contacting them doesn’t resolve anything, you may be able to ask ASIC to review their decision to register their business name. If ASIC denies your request or you are still unsure about your options, seek legal advice. If you need assistance getting your business off the ground and want to ensure it is protected from others, get in touch with our business lawyers today!


Corporate Governance 101: Responsibilities for New Directors

Friday 13 May | 11:00 - 11:45am

If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer