It is easy to think that registering a business name will give you the exclusive right to use the name, and prevent others from using the name or similar names. However, registering a business name does not make you the owner of the name, it merely shows people that you are operating your business under that name.
What protection does a trade mark give me?
It has already been said that a trade mark gives you an exclusive right to use the name. This means that if others use your name, or a name that is quite similar to your trademark, you can stop them through an injunction, or claim damages.
What protection does a registered business name give me?
Although you don’t get an exclusive right to the name, there are situations where other companies may be trying to mislead consumers into thinking that their company is your own. This is called ‘passing off’, and there are statutory and common law remedies to protect you in these circumstances.
It is a lot more time-consuming and costly to pursue an action in passing off than it is to enforce a trademark. You will not only save time and money if you have a trade mark, but having an official, registered trade mark can serve as a deterrent to other businesses who are trying to take advantage of your brand name.
Don’t get confused!
It is important to be aware of this distinction because there are different legal rights attached to a business name and a trade mark. You cannot try to stop someone from registering a similar name or using a similar name and threaten them with legal action if you do not own the trademark.
Coming at this from another angle, you should also be wary when you are notified by other businesses that you might be ‘infringing’ their rights. They cannot stop you from using a business name unless they are protected by a trade mark. People often think they can have the exclusive right to a name once it is a registered business name, but you should be careful to check that they are talking about a trade mark, and not just the registered business name.
To make matters more complicated, your registered business name does not ensure that you are not infringing someone else’s trade mark. Existing trade marks are not considered when registering a business name, so even if your business name is different to all other registered business names, it does not guarantee that it is not infringing on a registered trade mark.
Registering a business name does not give you exclusive rights to use the name. Trademarking protects your business name by giving you this exclusive right and the right to stop others from using the name. It is important to know what rights you get from the trademark, and what rights you have in association with your business name. This puts you in a better position to know your options where you think someone is infringing your rights, or where others are claiming that you are infringing theirs. It can be tricky to identify trade mark infringement, and so it is best to get advice from an IP lawyer.
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