A business name is the name that an individual or entity trades under.

A company name is the name under which a company is registered with ASIC.

A trade mark is a sign used or intended to be used to distinguish ones’ goods or services from those of another.

These terms are often confused which each other, and there is a common misconception that registration of a business or company name with ASIC is sufficient to protect a brand from competition. Whilst registration will prevent another business or company from registering with the same name, it doesn’t give exclusive rights to the name.

We have outlined the essential differences between a registered business name and a trade mark below.

Business Name

A business name is the name under which an individual or entity (such as a partnership, company, body politic, association, trust or superannuation fund) conducts their business. It identifies who that business is and informs the public about the identity of the business they are dealing with.

The Business Names Registration Act requires individuals and such entities to register their business name with ASIC if they are trading within Australia and are not operating under their own name.

A registered business name or company name will prevent other parties from registering that name with ASIC, however it does not:

• grant exclusive ownership of the name;
• preclude other businesses from using the same name without registering their business;
• preclude other businesses from registering a name that is deceptively similar, or using a similar business name; or
• stop anybody from attempting to register a trade mark for the same name.

Before you register a business name or company name with ASIC, you should check IP Australia’s trade marks register and ensure it does not infringe an existing registered trade mark.

Trade Marks

Individuals and entities wanting to obtain exclusivity over their business name should therefore register it as a trade mark. A trade mark is an intellectual property right that gives exclusive right to the use of the trade mark, which can take the form of a name, a logo, a slogan or motto, or other unique aspects of a business.

Registration of a trade mark will prevent other businesses from being able to pass off your trade mark, or from using a trade mark that is deceptively similar. The owner of a registered trade mark will have access to legal remedies to enforce these rights, such as an injunction, in instances where their trade mark is being infringed. Note though that trade marks apply to specific classes of goods and services, another business offering different products or services may still be able to register the same trade mark in their respective industry provided there is no potential for confusion between the products or brands.

Registration involves applying to IP Australia detailing the type of trade mark being applied for, the class of goods and services being registered and whether there are other similar trade marks in existence. If successful, the trade mark will become protected in all Australian states and territories for an initial period of 10 years and can be renewed for further periods of 10 years upon payment of a fee. Once registered the trade mark must be actively used, as any registered trade mark can be removed on the basis of non-use if not actively used for a period of 3 years.

Summary

While registering a business name with ASIC is a legal requirement for conducting a business’ operations, a trade mark provides the strongest legal protection against competitors using your name.