Starting a business is like constructing a building, and choosing your business name can be like laying the cornerstone. There are many things to think about when choosing a business name. Still, perhaps the most important one is seeing whether it is available to register as a trade mark. That's because registering a business name with ASIC doesn't give you any "ownership" rights to that name. Only a registered trade mark will provide you with the exclusive right to use your chosen name in relation to your goods or services.
Registering a business name with ASIC also does not offer you any protection if someone else decides to use it.
On the other hand, a registered trade mark will allow you to take legal action against a third party that uses your trade mark or a substantially similar one in relation to the same or similar goods or services as yours.
Trade mark protection is critical because if someone uses your trade mark and provides inferior goods or services to yours, it could lead to reputational damage to your brand. You would also want to stop someone else from benefitting from all the hard work you put into building your brand.
So let’s say you have chosen your business name, and it’s available to register with ASIC. Before you go ahead and register the name with ASIC, you should check the following:
- See whether the name or logo you have in mind for your business has already been registered as someone else’s trade mark. Remember to check for similar names too.
- Get advice if your chosen name is already registered as a trade mark. Depending on the class of goods or services it’s registered in, you may still be able to register your trade mark successfully.
- Once you have performed the proper clearance checks above, you should:
(i) register your business name with ASIC; and
(ii) apply to register it as a trade mark with IP Australia.
Remember: If you use a business name that is identical or very similar to a registered trade mark, you could be liable for trade mark infringement. The fact that you have registered your business name with ASIC will not protect you against a trade mark infringement claim.
Benefits of registering your business name as a trade mark
- Having a registered business name only prevents someone from registering an identical name to yours with ASIC, but it doesn’t give you any enforceable right to prevent them from using it. Unlike a business name, a registered trade mark provides you with exclusive rights to use, enforce and commercially exploit the mark.
- A registered trade mark protects you against a third party claiming that your business name is too similar to theirs.
- If your business name is not a registered trade mark, a business can potentially register a similar name to yours or a part of your name as their business name with ASIC. ASIC only prohibits the registration of “nearly identical” names.
- A registered trade mark is a valuable commercial asset that can help you market and expand your brand.
- Customers are more confident purchasing from a business they see as legitimate. A trade mark, once registered, lasts for ten years (and can be renewed every ten years after that). Trade marking your brand name and logo can boost consumers’ confidence that you are a reputable and legitimate business.
How can we help?
Our lawyers at Level Up Legal can assist you with full availability trade mark searches, trade mark applications and registrations, trade mark maintenance, and management of portfolios. We also advise on whether your trade mark application is likely to be successful. We work on fixed fees for these matters.
Contact us for an initial free chat and to get a fixed fee quote.
