• How to Protect Your Business Name

    A Business Name is not just the name under which you operate your business: your business name is a valuable asset and integral to the operation of your business. Clients relate to your name, the market recognises your product by name and you are often synonymous with your business name.

    Here’s how to protect your Business Name both by complying with your registration requirements and making sure everyone knows it’s yours!

    Business Name Registration vs Trade Mark

    By law, if you operate your business under a name that is not your (or your partner’s) first name and last name, or operate in any structure other than as a company, you will usually need to register your Business Name with the relevant government authority.

    If you are setting up your business in more than one state or territory in Australia, you may need to register your Business Name in each state. Click here for more information on each state and territory. The rules, requirements and process for registering a Business Name vary from state-to-state and there will be cases where you will have to register in one state, but not in another. For example, in NSW, if you are operating exclusively via the internet you do not have to register and display a business name, though you may still need to do so in other states.

    Registering a Business Name does not mean you have exclusive rights to the use of that name – only a registered Trade Mark can give you exclusivity rights. By registering a Trade Mark, you own the exclusive rights to use or control the ‘mark’.

    Here’s an easy summary:

    • Registered Business Name: this is just a legal requirement in order to operate using a name different to your first and last name, as it makes it easier for consumers (and authorities) to identify business owners. Business Name Registration does not automatically protect your business name or give you exclusive rights to use it.
    • Trade Mark: You don’t have to register a ‘mark’ in order to use it.  However, if you do register a Trade Mark, the ‘mark’ becomes your intellectual property that you own and have exclusive rights to. You can enforce your IP rights if anyone uses your ‘mark’ without your authorisation.  Registered Trade Marks are indicated with a small ‘TM’ symbol beside the ‘mark’.

    If you don’t have a registered Trade Mark, you are still protected by the law against misrepresentation (e.g. if someone tries to pretend they are the same business as yours by using the same business name), however enforcement of these rights would be under common law processes which can be much more expensive and time consuming, with a more difficult burden of proof.

    Some handy hints for choosing a Business Name

    Before choosing a Business Name, conduct these simple checks to help minimise any future problems:

    • Check the Trade Marks Register: Conduct a free search on the IP Australia Website to ensure that your proposed Business Name doesn’t infringe on an existing Trade Mark. Searching is not a simple process as there are various types of Trade Marks, classes and categories to which they apply etc, so make sure you refer to IP Australia’s Guide.
    • Check the Australian Business Names Register: Use the free ASIC Identical Names Check on their website to check the availability of a proposed Business Name.
    • Do a general internet search using your proposed Business Name: There are certain circumstances where a business is not required to register their Business Name (e.g. in NSW, businesses operated only via internet do not need to register their Business Name).
    • Check the availability of your preferred website domain name: Your website will be critical to your business, so you’ll want to make sure you can get a domain name that works for your business.

    Post By Karen (9 Posts)

    Karen helps small business owners tackle everything to do with starting, operating and growing their business. Everything from Business Tools and Spreadsheets, MailChimp and WordPress, and Business Documentation. When she’s not looking after your business, you’ll find Karen out and about pursuing her passion for photography, her family and food!

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  1. Melinda February 16, 2012 @ 4:32 am

    I remember well the angst of choosing my business name – it was so hard to find a name that I liked, and that no one else around the world was using but as you’ve pointed out, it’s important to choose the name carefully and when you do, make sure it’s protected.

    • Karen Vien February 17, 2012 @ 12:37 am

      Hi Mel,

      It’s definitely a pretty ’emotional’ process picking a business name – I know quite a few people who’ve suffered many sleepless nights over this question. That’s why it’s so important to make sure you get it right and then protect your name the first time round, because if nothing else – you don’t want to go through all that angst all over again!

      Karen

  2. Chris Bates February 17, 2012 @ 12:30 am

    Worth point out that even a trademark doesn’t entitle you to domain ownership.

    I’ve lost count how many times I’ve been asked for help to get a domain name that isn’t being used, just squatted on.

    If you’re interested, look into Scoopon vs Groupon. Classic high profile example of how far it can go.

    • Karen Vien February 17, 2012 @ 12:39 am

      Hi Chris,

      That is a great point, cyber-squatting is pretty prolific these days. That’s why it’s important to check the availability of your preferred domain name as part of the name selection process.

      Karen

  3. Sandra Slavec February 17, 2012 @ 3:04 am

    Hi Karen, just wondering I currently trade under my own name, but a few people have suggested that I should register my tagline as it’s also the title of my blog. What is your view on this?

    • Karen Vien February 17, 2012 @ 10:10 pm

      Hi Sandra,

      From a technical perspective, you’re not required to register your tagline since you don’t trade or operate your business under that name/title. As such, it’s really a question for you to decide whether your tagline should be protected with a registered trademark. If your tagline is synonymous with your business and critical to your brand, it may be worthwhile registering a trademark – the downside is that this is not a simple process.

      To put the question a different way: What would you do if someone else started using your tagline for their business? How would this impact your business? If you had to change your tagline, would your business be affected?

      Cheers,
      Karen

  4. Erin February 20, 2012 @ 5:59 am

    Hi Karen,

    Thanks for your article. I’ve registered a few business names over the years, but activate28 is the only one that has truly gotten off the ground (and onto the internet).

    I struggled with coming up with the name, and one night it came to me in a dream. Lucky I woke up and wrote it down. As far as I can tell (from internet searches) it’s (currently) unique. I haven’t done a TM search yet ….

    I have got two other names associated with my business: Spotlight28 (for interviews with people about being 28) and Photo28 (a photo challenge). I remember feeling ill when I discovered recently that someone else has a business called Photo28. Doesn’t seem to be trademarked though.

    From what I’ve heard, it’s pretty complicated and costly to register a trade mark. It’s something I want to look into in the future. Is that correct?

    Erin

    • Karen Vien February 21, 2012 @ 7:04 am

      Hi Erin,

      As you’ve noted, it can be costly and complicated to register a trademark so it’s not a decision to be taken lightly. In making your decision, consider what you would do if someone else started using this name for their business? For example, if the other business that uses “Photo28” registers this as a trademark and you are forced to stop using it, how would this impact your business?

      Cheers,
      Karen

  5. […] This blog was originally published on Grassroots Internet Strategy. Image adapted from: bulldogza / FreeDigitalPhotos.net Tagged: Business Name, Trademark […]