In Short
- Registering your business name with ASIC is mandatory but does not grant exclusive rights. To secure exclusive use, register your brand name as a trade mark.
- A registered trade mark provides the sole right to use, license and sell your brand name, protecting it from unauthorised use.
- Trade mark registration enhances brand identity and opens opportunities for licensing or franchising, offering additional revenue streams.
Tips for Businesses
Ensure your brand name is both registered as a business name with ASIC and protected as a trade mark. This dual registration safeguards your brand, providing legal protection and exclusive rights, thereby preventing others from using your business name without permission.
As a business owner, it is essential to understand the differences between a business name, a company name and a trade mark. Company names, business names and trade marks serve distinct purposes in the business landscape. A company name officially identifies a registered corporate entity with the Australian Securities and Investments Commission (ASIC). Business owners use business names when they operate under a name different from their own or their company’s registered name. Trade marks, on the other hand, protect brands by giving owners exclusive rights to use specific words, phrases, logos or other signs or symbols associated with their goods or services. As a business owner, it is crucial to understand these differences to ensure proper registration, compliance and protection of your brand identity.
This article will define the differences between a business name and a trade mark and will answer the question of whether your registered trade mark should match your business name.
Business Names vs Trade Marks
A business name is what you and your customers use to identify your business. In Australia, you must register your business name if you conduct business under a name that is different than your name. Indeed, you are legally obligated to register your business name with the Australian Securities and Investments Commission (ASIC).
On the other hand, trade mark registration is not necessarily a legal requirement to run your business. Instead, trade mark registration is additional protection you can apply for to protect the signs you use that identify your business in the marketplace. For instance, other than your business name, some common trade marks can include your:
- logo;
- slogan or tagline; and
- product names and sub-brands.
If you successfully register your brand name as a trade mark, you possess the exclusive right to use, license and sell goods and services using your brand name. Some of the major benefits to trade mark registration include your ability to:
- prevent competitors from using your brand name without your permission;
- take legal action if someone infringes on your trade mark rights;
- defend yourself if another brand accuses you of trade mark infringement;
- develop your brand identity using sure signs to the exclusion of others; and
- open additional income streams for your business if you license or sell your trade mark.
Identical Business Name and Trade Mark
It is fairly common for business owners to use identical business names and trade marks, though this might not necessarily always be the case. For example, if you are a software developer, your company name and business name might be the same (e.g., Jackson Software Pty Ltd). But perhaps you have spent many years creating a high-quality software product, hypothetically named PLUTO. In this scenario, while your business name could still be considered an unregistered trade mark, you are likely focused on the brand name of the product you have developed, PLUTO, getting exposure in the marketplace. In this case, you might be more inclined to register the brand name of your product, PLUTO, as this is the brand you wish to protect.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Benefits of Registering Your Business/Brand Name As A Trade Mark
Several benefits are associated with registering your business name as a trade mark. We explore these benefits in more detail below.
Exclusive Rights to Use
Notably, registering your business name with ASIC does not give you the exclusive right to use the name. Indeed, ASIC will not register two businesses with the same business name. For example, if you have registered your business name ‘Tom’s Grocery’, ASIC is unlikely to register another business with exactly the same name. However, nothing prevents another business from using your name to market and sell its products. For this reason, registering a trade mark that protects your brand name allows you to prevent others from misusing your brand name.
Limit Potential Infringement Claims
Registering a trade mark for your business name can also reduce the risk of infringing another person’s intellectual property rights. For example, if another party operates under a particular brand name and you decide to use a similar or identical name to operate your business, you could be committing trade mark infringement. To avoid this, registering your brand name as a trade mark will reduce the risk of infringing on someone else’s intellectual property rights since you gain the exclusive right to use your brand name.
Commercialising Your Trade Mark
Protecting your brand name by registering it as a trade mark can also expose you to greater commercial opportunities. As the owner of a trade mark, you gain the exclusive right to license your trade mark. This is particularly important if you decide to franchise your business.
If you have already registered your brand name as a trade mark, this can make franchising your business much easier in the future.
Continue reading this article below the formKey Takeaways
A business name and a trade mark are two different legal concepts. You must register your business name with ASIC so you and consumers can identify your business. Whereas trade mark registration provides you with the exclusive rights to use your trade mark, whether that be your:
- business name;
- logo; or
- slogan.
Since business name registration does not give you exclusive ownership over your business name, it is strongly recommended that you register your business name as your trade mark as well to gain the exclusive right to use it.
If you have any other questions about registering your brand name as a trade mark, our experienced trade mark lawyers can assist 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.
Frequently Asked Questions
Using a business name that is already registered as a trade mark can mean that you commit trade mark infringement. Therefore, to avoid legal proceedings for infringement, you should avoid using this business name and instead look for alternatives.
If you successfully register a trade mark with IP Australia, you receive ten years of protection from your filing date with the option to renew your registration.
We appreciate your feedback – your submission has been successfully received.
