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!

Alexandra Shaw

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