How Can I Prevent Others From Using My Business Name?

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Table of Contents

• 1. Check for Pre-Existing Usage
• 2. Register Your Business Name
• 3. Register a Trade Mark for your Business Name
• 4. Register a Domain Name
• 5. Regularly Monitor and Enforce Your Rights
• 6. Renew and Maintain Your Registration
• 7. Taking Action for Wrongful Use
• Key Takeaways

As a business owner, your business name is a valuable asset and a key component of your brand. As such, safeguarding it is crucial to avoid potential legal disputes later on. In a competitive market, the misuse of your business name by others can lead to customer confusion, jeopardising your brand’s reputation and affecting your sales. This article will guide you through the steps to prevent others from using your business name, ensuring protection and preventing unauthorised use.

1. Check for Pre-Existing Usage

Before deciding upon a business name, an essential preliminary step is to ensure that it is available.

If you are required to register your business name, you can check availability via the ‘ASIC Connect’ search function on the Australian Securities and Investments Commission (ASIC) website. Using this search, you can check for any matching or similar names that may already be registered. In completing this search, you should also verify the:

• owner’s details;
• registration status; and
• type of firm the name represents. 

2. Register Your Business Name

Once you have determined that your business name is available, register it with ASIC. It is a legal requirement to register your business name if you trade under a name other than your own. This will also ensure that you are claiming a unique identity for your business.

Critically, you must renew your registration periodically to keep it active. Though registering a business name will not give you exclusive rights like a trade mark would, it is important to comply with ASIC requirements. 

3. Register a Trade Mark for your Business Name

In addition to the legal obligation of registering your business name with ASIC, it is crucial to recognise that this step alone does not grant you legal rights over it. To safeguard your business name’s intellectual property (IP) rights, a separate and important action is registering it as a trade mark. 

After confirming that your business name is available, conduct thorough research using IP Australia’s Trade Mark Search to ensure it is not already registered. By registering your business name as a trade mark, you secure exclusive legal rights to use it within the specified categories of goods or services listed in your application.

For instance, if you register ‘BUMBLEBEE’ for downloadable software, you can prevent others from using the same or similar name for similar software goods or services.

Registering your business name as a trade mark is the most effective method to protect it. As a trade mark owner, you will be able to prevent others from using your business name and its associated IP.

Who Can Apply to Register a Trade Mark?

To apply for a trademark, the owner (you) must have a legal personality. This criteria covers entities such as:

• an individual;
• a company;
• an incorporated association;
• trustees of a trust.

How Do I Register My Business Name as a Trade Mark?

To register a trade mark, you need to follow a careful process to correctly apply for trade mark protection. First, check with IP Australia to ensure no existing trade marks are similar to your business name. Even if you find something similar, you should consider the classes of goods/services the trade mark applies to. For example, “Dove” for both chocolates and soaps are able to co-exist as these trade marks are for unrelated goods.

Once you confirm your name is available, you can apply for the trade mark through the steps outlined by IP Australia. If successful, your trade mark will have a 10-year registration. It is important to know that this protection only covers you in Australian states and territories.

If your business operates internationally or plans to, you must register your trade mark overseas as well. Ensuring complete protection abroad can be a complex process, as each country has its own rules for trade mark registration. If you are considering getting an international trade mark, you should consider seeking advice from an experienced trade mark lawyer.

Trade Mark Essentials

This guide explains the essentials of trade marks and the steps required to register a trade mark.

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4. Register a Domain Name

A domain name is like a unique electronic address for your business online. You can create a website using this address, making it an online centre for your business. It is also a helpful tool for advertising your business and making it easy for customers to find you.

However, simply obtaining a domain name does not give you exclusive rights. Rather, it reserves a specific online address for your use. As such, you should follow the aforementioned steps, registering your business name and a trade mark before getting a domain name. 

Before you decide on a domain name, you must check if it is available. Once you’re sure, you can find a list of approved registrars on the .au Domain Administration Limited (auDA) website. If you want a .com.au or .net.au domain, you need to be a business with an Australian Company Number (ACN) or Australian Business Number (ABN), among other requirements.

5. Regularly Monitor and Enforce Your Rights

Keeping a watchful eye on the market is essential to ensure your business name remains exclusive to your brand. This proactive approach involves regularly checking industry publications, online platforms, and relevant business directories for any signs of unauthorised use or similar names. One way you may do this is by setting up Google Alerts for your business name to receive notifications whenever it appears online.

If you encounter any instances of another party using a name similar to yours, investigate the nature of their operations and the geographic scope of their activities. If it threatens your brand, it is crucial to take prompt action.

Regular monitoring allows you to address potential infringements swiftly, protecting your brand identity and minimising the risk of confusion in the marketplace.

6. Renew and Maintain Your Registration

Once you have registered your business name with ASIC and IP Australia, keeping that registration current is essential. ASIC registrations typically have a limited duration. However, you will be sent a renewal notice by email 30 days before your renewal is due. A trade mark has a 10-year registration timeframe, and you can renew it after 10 years.

Renewing your business name, along with trade mark registration, ensures that you maintain legal rights to use it commercially. If you let the registration expire, you could lose these rights, and others might be able to use a similar or identical name without repercussions.

7. Taking Action for Wrongful Use

You have a few options if you discover someone using your business name without authorisation. These include:

• negotiating with the other party and reaching a mutually favourable outcome;
• if negotiations fail, sending a cease and desist letter that includes your trade mark’s details, examples of the infringing conduct and a request to stop it within a specified amount of time; and
• taking further legal action, though this may be costly. 

Key Takeaways

Safeguarding your business name in Australia requires a comprehensive approach, encompassing legal measures and proactive monitoring. To establish and maintain your exclusive rights, you should:

• check if it is available and register it with ASIC if it is;
• register your business as a trade mark;
• register a domain name;
• continuously monitor for possible infringement;
• renew and maintain your registration; and
• take action if another party uses your business name

If you would like assistance regarding registering your business name as a trade mark, contact our experienced trade mark lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.