Often business owners assume that once their business name is registered, their name and brand is protected by law against copy cats and competitors. However, registration of a business name, company name or a domain name does not on its own, provide the business owner full protection and intellectual property rights. Only a trade mark provides these rights.
Business name registration is a legal requirement under the Business Names Registration Act 2011 (unless you are a sole trader, trading under your own name). Trade mark registration is not required by Australian law and only occurs upon the diligence of the business owner.
Registering your business name does offer some protection to owners, but can be trumped by a registered trade mark. For example, were a business had a particular trading name that they had registered as their business name, which was the same or similar to a registered trade mark, the owner of that registered trade mark may issue demand to the owner of the registered business name that their use of it is an infringement of their trade mark. If this was found to be the case then the registered business name owner would likely have to cease using that name and change their name and/or branding to something else. This could be quiet a costly and time-consuming exercise.
Business owners should give strong consideration to applying to register their business name because:
- Once registered, the law protects an owner's right to the use of their brand for the period of the registration;
- A trade mark builds the intangible value in your business; and
- Trade marks are relatively inexpensive compared to protracted legal battles about use and ownership rights of business names and/or undertaking a costly re-brand exercise.
Dean Frith is a lawyer and partner at Baker Love Lawyers