As a business owner you must ensure that the business name you are using is properly protected in order to avoid a long and stressful litigation battle.

How do I register my business name?

Once you have determined a prospective business name you must ensure that this name is not currently registered as a business name or as a trademark. By conducing a search through ASIC Connect, you will be able to determine whether your prospective business name is currently registered with the Australian Securities and Investment Commission (ASIC). If your prospective business name is available with ASIC, this is great news. As a business owner, your next step is to ensure that your business name is not registered as a trademark. A business owner can check if a trademark has been registered by conducting a search though IP Australia’s TM Check. If your prospective business name has not been registered as a trademark, you are in a good position to have your prospective business name legally protected.

Do I need to register my business name with ASIC and as a trademark?

Registering your business name through ASIC is a legal obligation, however, it will not give you any legal rights over your business name. Protecting your business name’s intellectual property (IP) rights must be done separately. As a business owner, you must register your business name as a trademark in order to protect its IP rights. Therefore, registering your business name will give you priority over a business name that has already been registered as a trademark. 

How do I register my business name as a trademark?

Registering your business name in compliance with the Trade Marks Act 1995 will allow you to commercially use, licence or sell your trademark for the class(es) of goods or services it is registered under. Your trademark will be viable for a ten-year period. You will have the option to renew at the end of the ten-year period by paying a renewal fee. Registration will only protect your business name in States and Territories within Australia. In order to have your business name protected outside of Australia, you must register your business name as a trademark in the country of your choice. With the increasing use of the Internet, business owners should look into registering their trademarks in other countries, such as the United States. As a business owner, you will be protecting your business name should you choose to scale your business globally. 

Who can apply to register a trademark?

In order to apply for a trademark, the owner must be one of the following:

  • an individual;
  • a company;
  • an incorporated association;
  • a combination of these;
  • a trust (application must be in the name of the trustees);
  • a corporation ( must be in the corporation’s name). 

Who cannot apply for a trademark?

A business name or a trading name cannot apply for a trademark. 

Is your trademark going to be approved?

In order for your trademark to be approved you must ensure that it does not conflict with any other trademark. In accordance with the Trade Marks Act, if your trademark is not distinguishable based on your goods or services, your trademark will not be accepted. One of the main determining factors of whether or not an application for trademark registration will be accepted is whether another business owner in the same industry would need to use the same trademark in relation to their own goods and services in their ordinary course of business. This test is used in order to ensure that you or any other business owner in the same industry does not have an unfair advantage. For example, typically, a business will be prevented from registering a geographical location as a trademark because it is too descriptive in nature, and other businesses may also elect to describe their products by their origin.

Conclusion

To ensure that your business name is protected, contact one of our specialists and register a trademark. Our legal team will ensure that your business name is properly registered in the ASIC registry, as well as assist your business with having your trademarks registered.

Daniel Smith

Next Steps

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