The name under which you trade may be a business name, a trademark or both. So, what are the main differences and what do they mean for your business?
In some ways, a business name and a trademark can be the same thing – simply the name of your business.
However, there are very different registration regimes in Australia for business names and trademarks and it is important that these differences are understood.
Most trading names will need to be registered as business names. The Business Names Act 2011 specifies that a party carrying on a business under a particular name must register that name unless it is the party’s individual name, a registered company name or the full name of a partnership. Failure to register a business name will expose the owner of the business to significant penalties (presently $6300 per offence).
Some examples of where a trading name would need to be registered as a business name are provided below.
It is not necessary to register one’s trading name as a trademark and, therefore, trademark registration is optional. Nevertheless, trademark registration has very significant benefits. The main benefit is that registration confers strong, clear, legally enforceable rights (under the Trade Marks Act 1995) which are effective Australia-wide.
These legal rights can be relied upon to stop another person using the same or a similar trademark in relation to any goods or services which are similar to those of interest to the owner of the registration. In fact, the rights provided by a trademark registration function as a deterrent to competitors who might otherwise consider adopting the same or a similar name – so the need to enforce one’s rights does not even arise.
Further differences between business name registrations and trademark registrations are summarised below.
The name of a business is an important asset of the business and the registration of this name – as a business name or a trademark (or both) – is a very important consideration. These types of registration are very different, having very different purposes and effects. It is important that your name is registered correctly.
Philip Macken, Principal, Brand Haven Legal