A trade mark gives the owner the exclusive right to use the name or logo that is protected. Securing a trade mark over a business is therefore highly desirable, as it prevents similar businesses from using a name that is identical or very similar to your trademark. People who are applying for a trade mark for their business name often ask whether they need to have a registered business name before applying for a trade mark.
The short answer is no, your business name does not need to be registered in order for you to apply for a trade mark. While trademarking does not require you to have a registered business name, you may need to register your business name to meet other legal requirements. If this is the situation, it is important to choose your business name carefully so that you do have the option of trademarking it. This article considers the relationship between a registered business name and a trade mark and why they often go hand in hand.
What is a business name?
A business name is the name under which you conduct your business. If you are carrying out a business in Australia and you are not trading under your own name, you will generally need to register a business name. One of the reasons for this is so that consumers know who owns the business name and there is greater transparency.
Registering a business name does not mean you own the name, and it does not mean that you have the exclusive right to use the name. That is why you trademark.
Why would I register my business name?
Apart from the fact that you may be legally required to register a business, another reason you may want to register your business name contemporaneously as your trademark is to make sure you get the name you want. Both registered business names and trade marks are subject to availability, and your application will be rejected if there is an identical name or name too similar to yours already registered.
Registering a business name is easier than registering a trademark. Although it is not necessary to have a registered business name, one of the factors that IP Australia considers when they examine a trade mark application is how you have been using the name. Having a registered business name can support your application.
You do not need to have a registered business name for the purposes of applying for and registering a trade mark. However, you will need a registered business name if you are not operating under your own name. You need to be aware of the considerations made in a trade mark application and when you register a business name, such as availability. This allows for a smoother process in registering the business name and securing a trade mark for the name. If you are unsure about what factors are considered in a trademark application, it is helpful to talk to an IP expert.
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