Business Name

What’s in a Business Name?

Oftentimes in our trade mark practice, we help clients distinguish between a business name and a trade mark.  While registering a business name with ASIC does not provide trade mark rights, it is important to obtain a trade mark clearance before adopting and registering a business name. That way, in the event that you use the business name in a trade mark manner, you can be relatively assured that you are not infringing a trade mark, at least as of the time of the search.

Is the Business Name also a Trade Mark?

If you use a business name in a trade mark manner, you should consider registering the business name as a trade mark in the local IP office, IP Australia.  Notably, businesses that are named after an owner, for example, a person named Richard Headline might start a newspaper company called Richard Headline’s Company newspaper, registration of the business name is not required in Australia.  However, for example, if that person, Richard Headline starts a new business which is a news organisation he calls Headline News, the organisation must in Australia register the business name since it is not the name of the owner.  The company may use the name of the business, Headline News to brand its news products, such as newspapers and television shows.  In this way, the business name, Headline News is used in conjunction with the promotion and selling of its goods and services – that being using the business name in a trade mark manner.

In the case where the business name is used in a trade mark manner, the business (a proper legal entity) should apply for trade mark registration.

When Should a Business Name be Registered?

Registering a business name with ASIC does not provide exclusivity in the name.  However, as discussed above, if you use a business name that is not your personal name, you must register the business name with ASIC.  If you believe that you will soon use the business name in a trade mark manner, that is, you intend to use the mark soon, you should file a trade mark registration application for the business name.  However, the trade mark registration application must be filed so that it is owned by a legal entity.  There may be a time lag between registering a business name and setting up a business.  In that case, you might file the trade mark registration application in your own name and as soon as you set up your business, assign the trade mark registration application to the business.