It’s important to know that just because a business name is available to register, it does not mean that you won’t encounter problems with that name.
Author: Farrah Motley, a Solicitor of the Supreme Court of Queensland
If a business name is available on the Australian Business Register it just means that no one else has registered that name. However, another business might have a trade mark which gives them a better right to that name than you. If you register and use a business name that someone else has a better right to, you could get into trouble.
Is there intellectual property in a business name? There is a common misunderstanding that if you register a business name on the Australian Business Register, it becomes an intellectual property right and an asset that you own. However, all you are really doing is buying a right (usually one or three years, with options to renew) to trade using that name.
It is a legal requirement to register a business name if it is different to a company name. This registration enables your customers to identify the person (or company) that stands behind the name your customers interact with.
However, registration is not the same as ownership, because there is no intellectual property in a business name.
A trade mark, on the other hand (which can be registered or unregistered) gives its owner a right to use that name (or its stylised logo) in relation to the relevant goods and/or services, to the exclusion of everyone else.
If you register a business name without checking to see if someone has trade mark over the word(s), you may be unknowingly infringing that person’s intellectual property rights. While this is unlikely to lead to an expensive lawsuit, you may have to change your business name; this can lead to customer confusion, business interruption and the expense associated with rebranding.
So, if you’re thinking of registering a business name it’s important that you not only search the Australian Business Register, but also the Trade Mark Register. To check if a trade mark is registered, you can search the trade mark register managed by IP Australia.
Author: Farrah Motley | Legal Principal
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