When running a business you’ve likely registered a business trading name and purchased a website domain name, but what about a trade mark?
Many business owners make the mistake of thinking a business name registration and domain is enough to give them exclusive rights over that name. It isn’t.
Let’s explore the difference between a business name, domain name and trade mark below:
Trade Mark
A trade mark is a legally enforceable way to protect and identify a product or service in the marketplace and to distinguish it from other businesses.
Registering a trade mark in the appropriate class/es gives you the strongest form of legal protection as you’re covered by the Trade Marks Act 1995 as well as the general law.⠀
It gives you exclusive rights to commercially use, license or sell your trade mark within Australia (and any other countries your trade mark is registered in adhering to their laws) within the class of goods/services its registered under.⠀
A trade mark can be a name, image, logo, slogan, colour, smell, sound, shape (or combination of these things) so long as it is capable of distinguishing in this manner.⠀
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Business Name
A business name is the name used to identify a business (NOT a product or service) and used by the legal entity that owns it to promote the business. A business name is protected by general law only if not registered as a trade mark.⠀
ASIC is responsible for registering business names under the Business Name Registration Act 2011 (Business Names Act). ASIC applies rules to the registration of business names and one of those is if a name is identical or nearly identical to another name, ASIC must not register it. However, this can get tricky if the names are “similar.”
Domain Name
A domain name is your registered address on the Internet and lets users find you online.⠀
The internet plays a key part in running a business these days, and is also one of the main ways customers find your business. Registering a domain name can become a valuable asset.
As with business names, domain names can be closely tied to IP rights and for exclusive ownership over the name it’s best to have a registered trade mark. On their own, they do not give you exclusive use over that domain name.
Business Name Disputes
Sometimes in business, disputes can arise over having a similar business name to another operator. Perhaps you’re concerned that the similarity in names is confusing to customers OR you believe that you have a legal right to the exclusive use of that name as a registered trade mark.
First, check if the business name is registered on ASIC or IP Australia as a trade mark.
Then consider if the business “passing off” as your business? Passing off is when a business wrongly suggests a connection to another’s goods or services.
If you’re concerned about another business having a similar or identical name to you, research your options thoroughly by heading to:
- IP Australia
- ASIC (Australian Securities and Investments Commission)
- ACCC (Australian Competition and Consumer Commission)
You can also seek independent legal advice.
Key Takeaway
The main difference to remember is that registering a business or company name and a domain name does NOT give you exclusive ownership or proprietary rights over that name. Only a registered trade mark can do that.
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