There’s nothing worse than that sinking feeling after you spend months (not to mention money) establishing your brand before finding out two weeks before launch that someone is already using the name. Unfortunately, this is a common obstacle for new business owners to overcome. Discovering that someone else has already taken your business name may not be the end of the line for you, but it’s important to understand what options are available.
Does the Other Business Have a Registered Trade Mark?
You should first ask whether the business has a registered trade mark in Australia. A registered trade mark gives the owner an exclusive right to use the mark in relation to their business. Use of the mark without permission from the owner would be considered infringement.
Remember that registering your business or company name through the Australian Business Register or ASIC is not the same as trade mark registration. Registered business names and company names, however, do provide an indication as to whether the names are in use.
This article addresses the situation where the other business does not own a registered trade mark. You can read our tips in our article about launching a business when another owns the registered trade mark.
Are the Businesses Considered Competitors?
When it comes to business names, owners are usually concerned with whether someone else in the same industry is using the same or similar name. This is because if they are providing the same goods or services, consumers are likely to be confused and potentially approach the wrong business.
If another business is using the name you have chosen and is trading different goods or services, the owner is less likely to be concerned with you setting up a business with the same name.
Where is Each Business Operating?
The location is another important factor. There are more than two million small businesses in Australia – mostly local small businesses. Although consumers can access businesses nation-wide online, not all have a presence in more than one Australian state. For example, a local florist in Perth is unlikely to be bothered that a florist opened up in Bendigo with the same name. An online clothing store that ships Australia-wide, on the other hand, may have an issue with a retailer opening with the same name in Melbourne.
How Long Has Each Business Been Trading?
Answering this question will help you better understand your competition if you proceeded with the business name you have chosen. Is the business well-established and well-known? Even if the established business does not have a registered trade mark, they may have other common law avenues available to them to stop you from using the business name.
In these types of situations, there are two questions at the heart of this situation:
- Will it bother you that someone else has the same business name?
- Will it bother you if the other business finds out that you are using the same business name?
In many cases, the answer to both the questions would be ‘yes’. It seems logical that business owners would not want another business to use their business name. The factors discussed above are useful when deciding whether to proceed with using your business name.
It is worth searching the Australian Business Register, ASIC and the Trade Marks Register (ATMOSS) before selecting a name. These searches do not always let you know whether the business is still active and still using the name so you should also do general searches. The best places to find whether a business is trading and where is online and through social media.
Register Your Trade Mark
If the other business hasn’t registered the trade mark, you have the option to do so. The other business, however, will have an opportunity to oppose your application. They may succeed if they can show that they have been using the trade mark before the date on which you filed the application (known as ‘prior use’).
Your response to discovering that another business has your chosen name comes down to evaluating the facts and the history of each business. In the absence of a registered trade mark, the right to use a business name exclusively is a grey area. New business owners face the decision of whether to continue with their chosen name at the risk of opposition or to change their name. If you have any questions about your position or need assistance registering your business name or trade mark, get in touch with our IP lawyers on 1300 544 755.
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