Business names are a crucial part of many businesses, both large and small. They serve as an easy, quick and effective way of communicating to customers the uniqueness and purpose of your business. They are distinctive to your business and what makes your business stand out from the rest.
Oftentimes, a significant amount of thought is put into them, alongside significant investments which come in the form of signs, branding and merchandise. In this way, your business name is transformed from a simple idea, to a valuable form of intellectual property that is worth protecting and safeguarding.
If not properly protected or checked, you might face serious consequences, including being forced to change the name of your business at significant expense.
This article will set out a series of steps to help make sure you don’t infringe upon others business names, as well as how to properly protect your own.
Securing And Protecting A Business Name
An important preliminary step before deciding upon a business name is to make sure it’s not already being used by someone else. To do this, a series of searches and steps should always be completed.
It is a legal requirement to register your business name if you’re carrying on business under that name. Although simply registering a business name doesn’t give someone exclusive trading rights or ownership over that name, searching the Australian Business Registry for your name is a quick and easy preliminary step which should always be taken.
Alternatively, ASIC Connect provides a speedy way to check if your name is already registered.
According to section 17 of the Business Names Registration Act 2011 (Cth) (the Act), the registration of a business name does not affect the rights of any entity in relation to the business name. However, as per Section 25 of the Act, a business name can only be registered if it isn’t “identical or nearly identical” to another registered name.
Put simply, though rights are not affected, you cannot register the same business name as someone else. Taken with the prior legal requirement, you must have a unique business name to carry on business under that name. This is why the preliminary search is necessary. It means that you will not fully commit to a business name that might be taken by someone else, and therefore cannot be registered.
Essentially, registration just allows customers or other entities to easily identify and find your business. More practically, it ensures your creative work and reputation will be correctly associated with your business and your business alone. Section 25 of the Act sets out when a business name is available to be registered.
As mentioned, registration of a business name by itself gives no exclusivity or right to sole use. It’s simply a good way of making sure no one else is using it.
So, the most effective way to protect your business name (and its associated intellectual property) is by trademarking it. This is especially important for bigger businesses. Trademarking your business name protects it by making it an offence to use it under the Competition and Consumer Act 2010 (Cth). This is substantially different from simple registration, as it allows ASIC to fine and penalise those who misuse your trademark.
So, what is the first step in this process?
The first step (as it was for registration) is to search to see that there are no existing trademarks for your business name. This can be done through IP Australia.
But even if your search finds a trademark similar to your business name, it might be possible for both to exist.
|To give an example, Dove is trademarked for both chocolates and soaps by different companies. But this is allowed to exist as both ‘chocolate’ and ‘’soap’ are considered to be different goods, with a different purpose and sold through different trade channels.|
Once you have found no similar trademarks, or, if the situation above exists, you can apply to trademark your business name. The process that must be followed is outlined by IP Australia, and we’ve explained the process in more depth in this article.
If your business operates overseas or is looking to do so, it’s important to realise that the process outlined above only registers trademarks in Australia. Every country has its own system of trade marks, so you’ll need to consider the trade mark laws of each country to be fully protected. If you are considering registering an international trademark, it’s worth having a chat with one of our expert intellectual property lawyers before you finalise any decisions.
A domain name gives your business a unique electronic address. A website can be built on this address, which can serve as an online platform for your business. It also acts as an important marketing tool that can help customers find and identify with your business.
Importantly, a domain name is not a form of intellectual property rights. You cannot protect your business simply through registering a domain name. The domain simply reserves a certain electronic address for your use. On this note, it is a good idea to complete the steps of registration and trademark mentioned above prior to applying for a domain.
Before registering for a domain name, check that a domain is available. Once this has been confirmed, the .au Domain Administration Limited (auDA) website provides a list of accredited registrars for those looking to register a domain name. As an additional requirement, to register for a .com.au or .net.au domain name, you must be a commercial entity and have an Australian Company Number (ACN) or Australian Business Number (ABN).
As a last tip, when picking a domain name, it is important to choose one that is easy to remember, is short and unique, and that accurately represents your business.
Other Important Steps
If you haven’t completed the registration process for your business, the trademark, or for your domain name, it is crucial that key personnel are under Non-Disclosure Agreements. This is especially important if you think you have a unique business name that would attract customers and is something different to anything else on the market.
These agreements would help protect your business’ confidential information that is disclosed during commercial discussions. This would include things like discussions around your business name. Confidentiality is crucial in the workplace, and is even more important when you haven’t registered or trademarked your unique business and its name.
Properly protecting and securing your business name is not an easy process. There are multiple steps that all need to be taken, each with their own complications and problems.
If you are in the process of setting up a business, or want to further secure your existing business’s name, you can reach out to us for a free, no-obligations chat at email@example.com or 1800 730 617.
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