Contrary to popular belief, business names, company names, domain names and trademarks all have very different roles and provide very different levels of protection. In this article, we sift through the differences between each of these identifiers, and lay to rest some common misconceptions.
Neither business names nor company names grant any proprietary (ownership) rights like those granted by a trademark registration. By the same token, neither business names, company names, nor domain names, offer any form of protection against action for infringement of a registered trademark.
Or more simply put – having a registered business name or company name, will not by itself provide protection from being sued for infringing someone else’s trademark (even if you don’t know of their existence).
So if business, company and domain names don’t actually provide ownership in the use of a name – what purpose do they serve…? And what are some of the related requirements you need to be aware of?
Company names are names registered with ASIC merely to provide a legal identity for a company – on a national basis (as opposed to business names below, which are state based identifiers).
To be registrable, a company name must not be “identical” to any other company, business or other name registered on the ASIC database (or other relevant databases). However, a name which is similar to a registered business name or company name, is not restricted from being registered as a company name. Therefore, this means that if you have received a company name registration, you will be the only business holding that exact name, but there may be many other businesses holding similar names.
In disputes where 2 names are very similar to each other, and the goods or services provided by the feuding businesses are similar, it is the trademark ownership, not the company name ownership, that will determine which party has the right to keep the name, and which will end up with a large costs bill on their hands.
A business name is a name under which a business operates in a particular state.
The purpose of registering a business name is to ensure that consumers and businesses that you deal with are able to identify who it is that is running that business. The legislation of each state requires that if you trade under a particular name, that name must be registered as a business name in that state (if it isn’t already registered as a company name – which is national, as discussed above). It is compulsory. And it must be completed before the business starts trading.
That business name as it is registered must appear on all letterheads, invoices, and other collateral of the business.
Where a business operates in more than 1 state, the name must be registered in each of those states. But as with company names above, whilst business names cannot be identical to other business names registered in that state, or to company names, they may be similar to business names in that state, and they can even be identical to business names in other states.
As with the warning about company names, registration of a business name does not provide any legal rights in the use of that name. Business name registrations don’t provide any immunity from legal action against you for the use of that name.
As we all know, a domain name is an address for a location on the internet. Each type of name could be represented in many variations of domain names.
Domain name allocation rules have recently changed, and in the national and international arena, you may now be eligible to obtain a domain name matching your own trademark (registered, or in the process of a registration application) even if it is not your registered business name or company name. In the reverse, you can also potentially register your domain name as a trade mark.
But merely holding a domain name will not on its own provide you with any rights in relation to stopping other people using a similar name. There are varying restrictions on the right to hold domain names, however whilst you may have taken steps to ensure that you hold the .com or .com.au domain names for your business, it can be very difficult to stop your competitor down the road from registering a .net by the same name.
Navigating disputes in the domain name area is quite complex, and we will be covering this further in an upcoming article.
A trademark is a mark that distinguishes the goods or services of one trader from those of another. Trademarks can be many things – like a logo, picture, word, phrase, letter, number, sound, scent, or shape.
Trademark registration is a national registration, lasts indefinitely (for as long as the 10 year renewal fees are paid), and protection can commence even before you have actually commenced trade.
Unlike all of the other identifiers we have discussed above, trademark registration gives the registered owner exclusive rights in the use of that mark throughout Australia (in relation to the goods and services for which it is registered) – to use, licence and sell that mark.
The benefits of course from a trademark registration are those exclusive ownership rights that are provided to you – that neither business names, company names, nor domain name registration provides.
A trademark registration can make it much easier, cheaper and quicker for you to pursue others who are using your mark for similar goods/services. And simply holding it gives you much greater protection against the possibility of being sued by someone else for using that mark.
If you are interested in finding out more about trademark protection, send us an email to [email protected] to get a free trademark registration information pack. You might also like to subscribe to our free legal updates that provide up to date information on developments in the law for SMEs – you can do that by subscribing at the bottom of this page.
Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date.