For many first time business owners, there is often confusion when it comes to exactly what type of protection a business name can provide. There is even more confusion when this gets mixed up with trading names, domain names or trade marks. So what exactly is a business name? And will having a business name prevent others from using it?
Business Name in Australia
Officially, a business name is the title which is used to conduct your business. In most cases, a business name needs to be registered. Some exceptions include sole traders or partnerships who use their own name to conduct business. As part of the business name registration process, you do need to check for availability. The Australian Securities and Investment Commission (ASIC) will assess whether the name, or something nearly identical to it, is already registered. They will also need to determine that it is not a name that may be offensive or misleading.
Although searches are made to ensure that you are not trading under a similar name as another business, ultimately your registration is simply a legal obligation required to ensure that the public are aware of who they are doing business with. This means that the business name is limited in the form of protection it can provide. It does not provide you with exclusive use of the name or ownership of the name. This means you are not able to prevent other parties from using it.
When it comes to the intellectual property of the name, the only way to claim ownership is through trade mark registration. Trade mark registration in its definition provides people and businesses with a legally enforceable right to exclusively use a business name. It provides intellectual property ownership, which means you can licence your business name or even sell it. It also provides you with the ability to enforce exclusive use of the name by commencing an action in trade mark infringement.
For practicality, it would also be helpful to register your business name as a domain name if you plan to trade online or to use the internet to advertise or promote your services. By registering your business name as a domain name, you will be able to have a unique electronic address. Australian business who possess an Australian Company Number of Australian Business Number have the capability to buy domain names with the suffix .com.au or .net.au.
It is important for businesses to understand the difference between a business name and a trade mark. Although a business name needs to be registered and checked by ASIC, it is ultimately a legal obligation for people or companies seeking to conduct business. A trade mark is the only legal option to prevent other parties from using your business name. If you are interested in getting further protection and protecting your name and brand, speak to our team of trade mark lawyers to start the process!