Many business owners incorrectly believe that registering their business name with Australian Securities & Investment Commission (ASIC) protects their trademark.
A business name is simply a name or title by which a person or entity conducts their business. In Australia, you must register your business name in order to trade. However, your ASIC business name does not stop any third parties from using the same name, logo or brand if you do not have a registered trademark with IP Australia
Here is a quote from the ASIC:
‘Having a registered business name does not give you ownership of the name or the exclusive right to use the name. Registering a business name:
- does not stop another person from registering a similar name
- will not prevent the name being registered as a trademark
- will not prevent the name being used by someone that has already registered it as a trademark
- does not protect you from legal action if the name of your business infringes the intellectual property rights of another (for example, a name which is a registered trademark)’
So what exactly is a trademark?
A trademark is something that is used to distinguish the goods and services of one trader from those of another. It can be a word, phrase, sound, smell, shape or logo. Popular trademarks include McDonald’s’ golden arches, Toyota’s ‘O what a feeling’, Toblerone’s distinctive triangle and Cadbury’s colour purple.
A registered trademark is legally enforceable and gives you exclusive rights to commercially use, license or sell it for the goods and services that it is registered under. It is often a business’s most valuable marketing tool and can give you a competitive advantage over other traders.
It grants exclusive rights to use, license or sell the goods and services for which that trademark is registered. Unlike a business or company name registration, which do not give you the right to use the registered name as a trademark, those exclusive rights can be legally enforced.
Christina Andrews, DC Strategy
