Updated: May 21
It's important to understand what legal rights you have to your new business name. As there are no intellectual property rights in a business name or a company name, you may need to register a trade mark.
A business name or a company name may include a word or phrase which is a trade mark and is therefore protected by:
If the trade mark is registered, the Trade Marks Act 1995 (Cth), the Australian Consumer Law and Common Law; and
If the trade mark is unregistered, the Australian Consumer Law and Common Law (but not the Trade Marks Act 1995 (Cth)).
So let's say your business name is 'Prosper Law'. That business name is registered on the Australian Business Name Register, but it is not a registered trade mark. I
f you look at "Prosper Law" solely through the lens of a business name and the Business Names Registration Act 2011 (Cth), it has no intellectual property rights attached to it.
However, no one else can register that business name (because the Business Names Registration Act 2011 (Cth) does not allow for duplicate business names, or business names which are too similar to existing business names, to be registered.
Further, if someone else started using 'Prosper Law' in trade or commerce, they may be engaging in misleading and deceptive conduct (and invoking the provisions of the Australian Consumer Law) and their conduct may also be actionable under the Common Law (for instance, the tort of passing off).
Want to read more? Check out this article which explains what you should do if you are considering registering a business name.
Author: Farrah Motley | Legal Principal
M: 0422 721 121
A: Suite No. 99, Level 54, One One One Eagle Street, Brisbane, Queensland, Australia