Trademark a Business Name in Australia: Protect Your Brand’s Identity

Author: Ian Aldridge, Progressive Legal

Are you a business owner in Australia looking to protect your business name? Registering your business name with ASIC unfortunately doesn’t provide you with the ultimate legal right to use it.

However, by trademarking your business name, you can obtain the highest level of legal protection, ensuring exclusive rights and preventing others from using it.

On this page, we will walk you through the benefits of trademarking a business name and the process of registering it in Australia.

What’s the difference between a business name and a trade mark?

Before delving into the process, it is essential to differentiate between a business name and a trademark.

A business is the name under which your business operates which you must register with ASIC. You’ll receive an Australian Business Number (ABN).  A business name registered with ASIC does not give you any legal rights to the name. This means that if someone else uses your business name you don’t have any rights to stop them.

Just because you have a business name, it doesn’t give you the right to use it.

Most small business owners don’t know that a business name is simply a nickname, not a separate legal entity. Someone can actually come along and stop you from trading if they were there using the name first.

Only an unopposed and registered trademark will actually give you the highest protection you need to be able to use it legally and be sure that you can.

Why should I trademark a business name?

Registering your business name alone does not provide exclusive rights to use the name in the marketplace. To ensure complete protection, registering your business name as a trademark with IP Australia is your best bet.

A registered trademark grants you exclusive rights to use the mark in connection with the goods and services for which it is registered.

When you trademark your business name, you get the protection afforded to you under the Trade Marks Act. It means that if there is any trade mark infringement, you do not have to prove reputation and the process is much more straightforward than relying solely on misleading and deceptive conduct under the ACL or the tort of passing off.

You can use a trademark as a shield or a sword. Let us explain:

Trademark a business name for legal protection

A registered trademark is your shield, offering the highest level of legal protection and safeguarding your business name from unauthorised use and potential confusion among consumers.

If another entity uses a similar mark, you have a strong legal position to enforce your rights, regardless of reputation. Taking action against infringers becomes easier with the burden of proof simplified.

Trademark a business name for exclusive rights and brand Recognition

A registered trademark empowers you to build brand recognition, establish a strong presence, and differentiate yourself from competitors. With exclusive rights, you can prevent confusion and capitalise on consumer trust, enhancing your brand’s goodwill.

Trademark registration grants you exclusive rights to use the business name in Australia for an initial period of 10 years, with the possibility of indefinite renewal upon payment of renewal fees.

As a legal sword, you’re registered trademark business name builds brand recognition by preventing competitors from using similar names that could confuse consumers.

This exclusivity establishes a strong brand presence, enhances consumer trust, and differentiates your business in the marketplace.

Trademark a business name for geographical expansion

Once you have successfully protected your business name with a trademark in Australia, you can consider expanding into new markets.

A registered trademark in Australia can serve as a foundation for obtaining trademark protection in other countries, ensuring the continued security and recognition of your business name.

What’s the registration process to trademark a business name in Australia?

Trademarking a business name in Australia involves the following steps:

Seek legal advice when you want to trademark a business name

It is highly recommended to seek guidance from a trademark lawyer who specialises in intellectual property (IP) law. At Progressive Legal, the expertise of our trade mark lawyers will ensure a smooth and effective trademark registration process.

Conduct preliminary searches

Before filing for trademark registration, it is crucial to conduct preliminary searches to identify any potential conflicts or infringements.

This step helps to avoid unnecessary complications later in the process. We offer a free trade mark search service to make this part of the process easier and more time-efficient for you.

File a trademark application for your business name

With the assistance of your trademark lawyer, file a trademark application with IP Australia. The application should accurately represent your business name and specify the appropriate classes of goods and services associated with your business.

Examination and response

Once your application is filed, it undergoes examination by IP Australia. In some cases, adverse reports may be issued, indicating potential issues with your application.

We can help you interpret and address these adverse reports, modifying and reapplying if necessary.

Registration and enforcement

If your trademark application is accepted, your business name is registered as a trademark for a period of 10 years. During this time, it is important to actively use and enforce your trademark rights to protect your brand.

How to avoid common pitfalls when you trademark a business name

While trademarking a business name may seem straightforward, there are common pitfalls that applicants should be aware of.

Failing to properly secure the rights to your business name can have serious consequences, including potential infringement claims and the need to rebrand. Here are some key considerations:

Understand your rights

Be aware of your rights, or lack thereof, to use certain business names. Conducting thorough research and due diligence can help you avoid legal disputes and protect your brand’s integrity.

Act promptly

Time is of the essence when it comes to trademarking a business name. The sooner you apply for registration, the better, as registered rights are backdated to the priority date of your trademark application.

Opposing a registration when someone else tries to trademark a business name

During the two-month opposition period after someone applies to register a trademark, you can oppose the registration if they are attempting to register a trademark similar to your business name.

Providing evidence that you were using the name first and continued to use it can support your opposition. Failing to oppose a trademark registration may allow the applicant to proceed with registration.

However, if you used the mark before the registered holder, you may have a defence against infringement claims.

For more information about trademark oppositions, click here.

Key takeaways

Trademarking your business name in Australia is a crucial step in protecting your brand and establishing legal ownership. By securing a registered trademark, you gain exclusive rights, brand recognition, and the ability to expand geographically.

Consulting with a trademark lawyer and following the proper registration process is essential to maximise the benefits of trademarking your business name. Safeguard your business’s identity and secure its future by taking proactive steps to protect your valuable intellectual property.

To get professional guidance and start the process of trademarking your business name, contact our experienced trademark lawyers on 1800 820 083 or request our advice below.

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