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Do You Need a Trademark to Protect Your Business Name?

We all know how important a brand is to a business. Good businesses put a lot of thought (and money) into creating a brilliant business name and brand image, and if you do it well your brand helps you stand out from your competitors. It’s what makes people want to talk to you at the party and then recognise you again when they see you at the next one. This is worth protecting! So how do you do it? We’ll take you through the curly world of business names and trademarks.

What’s the difference between a business name and a trademark?

Many people assume that registering your business name automatically protects you from others using your name, product or service, or aspects of your brand. Unfortunately this is not the case! While registering your business name does provide some restrictions around other businesses using the same name, if someone has registered the business name as a trademark, they are within their legal rights to use it. In fact, this may end up causing you legal problems rather than the other way around.

The best way to think about it is this: registering a business name and registering a trademark have different purposes. Registering your business name is more of an obligation that allows you to trade under a different name to your entity (sole trader name or company name). It doesn’t give you full legal rights over that name. On the flipside, registering a trademark legally protects your name (or other aspects of your brand) and stops others from trading with it.

What do you need to register to protect your brand?

Business name

Registering your business name is an important step to operating your business. It links to your Australian Business Number (ABN) and, for companies, Australian Company Number (ACN) and identifies the legal entity that owns your business. So, obviously first you’ll need to have applied for an ABN. Before you register your business name, you’ll also need to check it doesn’t infringe on an existing registered trade mark and make sure that the business name isn’t already registered. Note that while other business owners can’t register exactly the same business name, they may be able to register a similar name or even trade under your name without registering it.

If you own a registered company and ACN, you may also choose to register a company name, which must include the legal terms Pty Ltd. In this instance, many people register a business name to avoid using the Pty Ltd terms in their brand.

Prior to 2012, trading names were registered separately. These days, your trading name is your business name, operating under the legal entity that owns your business or company. You only need to register a business name if it’s different to your entity name.

Trademark name

The aim of a trademark is to brand your product or service. It protects much more than your business name and can include additional elements of your brand, such as numbers (think Levi 501s), colours (Cadbury’s distinctive purple) or shapes (the now famous Qantas flying kangaroo).

The main benefit of registering a trademark is your right to use that trademark in your business operations (throughout Australia) without having to prove any ownership over it. It’s then a criminal offence for someone else to start using your registered trademark. And because a trademark is an asset, a successful brand can also sell its trademark. Just remember, once your trademark is registered you must use it regularly or it can be ‘removed for non-use’ from the register.

To save you time and money, before you register your trademark we recommend you do a trademark search with Intellectual Property Australia, a quick process that is now based on cutting-edge technology such as image recognition (in the case of checking logo shapes, for example). IP Australia receives over 60,000 trademark applications every year, so you can imagine how many registered trademarks exist in Australia! You’ll also need to check your eligibility to register a trademark and get an understanding of what class of goods or services your trademark should be registered for. Jump on the IP Australia website for more about all of this.

Domain name

Registering a domain name gives your business a unique URL. It’s good to snap up your preferred domain name address through an internet service provider (ISP) as soon as you’ve registered your business name—well before your website is ready. This isn’t a legal requirement but your website is an important part of your brand and you want your domain name to be simple and as closely related to your business name as possible to support a consistent brand. Keep in mind, if you want a com.au or .net.au domain name, you’ll first need an ACN or ABN.

In Australia there are many private internet providers that issue domain names, so it’s best to use an auDA accredited registrar.

Where can you go for more advice about protecting your intellectual property?

Reading this far has hopefully made things a little clearer for you but it’s important to recognise that the legalities around setting up a business and intellectual property rights can be very complicated. This guide is by no means comprehensive and is for research purposes only. At this stage we recommend engaging a lawyer who specialises in intellectual property to look into it for you. Set things up properly from the start—it can save you a lot of headaches down the track.

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