Business Names and Trade Marks are not the same. They have different registration processes, different requirements and different legal outcomes.
In this post, we look at the difference between a Business Name and a Trade Mark.
What are they?
A Business Name is a registered name under which a business can trade.
Only words or phrases can be registered as a business name.
A Trade Mark is a sign that is used by a trader to distinguish goods or services from those of another trader.
A trade mark can be a word, phrase, logo, image, sound, scent, shape or motion, or a combination of any of these.
How are they registered?
Registration is under the Business Names Registration Act 2011 (Cth) and is administered by the Australian Securities and Investments Commission (ASIC).
Your professional advisor (eg a lawyer or accountant) can register a business name on your behalf, or you can also use a third-party registration provider.
We recommend obtaining professional advice before registering a business name, including a trade mark availability search.
Trade marks may be registered under the Trade Marks Act 1995 (Cth) and are administered by IP Australia
It is possible to apply for a trade mark registration yourself on the IP Australia website.
However, we recommend engaging the services of a professional, such as Xuveo Legal, in order to:
- obtain the right pre-application advice on whether your trade mark is available and suitable for registration;
- avoid mistakes in preparing and lodging the application;
- manage the application process and navigate any hurdles along the way.
How long does registration take? How long does registration last?
Initial registration is quick and often takes less than 24 hours if the name is available.
You have a choice to register a business name for 1 year or 3 years. Renewal must be paid before the end of each registration period to continue the registration.
Initial registration takes a minimum of 6½ months to complete. This is because each application is examined to ensure it complies with statutory requirements and is subject to a public opposition period of 2 months.
Trade Marks are registered for 10 year periods and can be renewed at the end of each registration period.
Do I have to register? Why should I register?
Under the Business Names Registration Act, it is a statutory offence to trade under a name that is not identical to the business’ legal name.
For example, a business name must be registered in these situations:
- John Smith (a sole trader) wants to trade under the name “John Smith Plumbing and Electrical”;
- XYZ Pty Ltd (a company) wants to trade under the name “XYZ Auto Parts”;
If the business uses its own legal name (eg “XYZ Pty Ltd”), then it may not be required to register a business name. Check with your professional advisor for further advice on whether registration is required. Fines may apply for failing to register.
It's important to remember that Business Name, Company Name and Domain Name registrations do not provide you with protection against trade mark infringement. As well, you don’t “own” a business name, company name or domain name.
Registering a trade mark is not compulsory, however, it is highly recommended.
Trade Mark registration gives the owner the legal ownership of the trade mark, which includes an exclusive statutory right to use the trade mark.
Trade Mark registration can help prevent other traders from using a similar trade mark, and can reduce the risk of infringing someone else's registered trade mark.
Registered Trade Marks can also be valuable assets for your business - including if you decide to sell your business or obtain external investment.
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