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.