The Difference Between a Business Name and a Trade Mark

Contrary to what many people think, registering a business name does not give you the exclusive right to use that name, and stop others from using the same or similar name.

To have an exclusive right to use a name, you need to register it as a trade mark with IP Australia: https://www.ipaustralia.gov.au/.  This means that others cannot use a business name that is the same or similar to your trade mark and, if they do, you can stop them through (amongst other things) a court injunction, and claim damages.

If you do not own the trademark, you cannot try to stop others from registering a similar name or using a similar name.  Conversely, others cannot stop you from using a business name unless they are protected by a trademark.

The fact that you can register your business name does not mean that you are not infringing someone else’s trademark.  Before applying to register your business name, you should ensure your business name does not infringe on an existing registered trade mark.  You can do this by searching the trade mark register here: https://search.ipaustralia.gov.au/trademarks/search/quick.  By ignoring this important step in your business setup, you risk legal action.

Conclusion

Registering a business name does not give you the exclusive right to use the name.  A trademark protects your business name by giving you the exclusive right to use it, and stop others from using it.  It is important to know the difference between a business name and a trade mark as there are different rights attached to each.  Knowing this distinction puts you in a better position to determine if someone is infringing your rights, or if you are infringing someone else’s rights.

Please contact us if you would like to discuss any of the above.  We would be happy to assist you.