Current as of March 2016
It is a common misconception that having a registered business name or domain name will provide a business owner with exclusive ownership of that name.
There are important differences between a business name, a domain name and a trade mark. You should be aware of these differences so that you can work out which best suits your needs.
A business name is a name under which a person or entity trades. Under the Business Names Registration Act 2011 (Cth) all business names must be registered with the Australian Securities & Investments Commission unless an exemption applies. These exceptions include:
- The business name is a person’s name (e.g. Fred Smith trading as Fred Smith)
- The business name is a company’s name (e.g. Fred Smith Plumbing Pty Ltd trading as Fred Smith Plumbing).
- The business name is all of the partners’ names (e.g. Fred Smith and Joe Brown trading as Smith & Brown).
Under the Act, registering a business name:
- does not stop another person from registering a similar business name;
- does not give you exclusive rights to use all or part of the business name; and
- will not prevent somebody who has registered it as a trademark from using the business name.
A domain name is your company’s URL, or Internet address.
Like business names, registering a domain name will not give you exclusive rights to use all or part of the domain name as a business name.
In fact, most domain name providers place an obligation on their customers to indemnify them for any loss they suffer as a result of a domain name breaching the intellectual property rights of third parties (e.g. where a trade mark exists that has the same name as your domain name).
A trade mark confers proprietary ownership rights, unlike business names and domain names.
The most common form of a trade mark is a logo, but it can also include words, sounds and smells.
Trade marks are registered with IP Australia. Once registered a trade mark owner will have the proprietary ownership right to:
- use their trade mark as a brand name for the goods or services specified in the registration;
- authorise other people to use their trade mark for the goods and services specified in the registration; and
- sell or transfer their trade mark to another person.
A trade mark can be unregistered and the owner can still have some rights in common law (i.e. via the Courts) or some statutory rights under the Competition and Consumer Act. However, it can be expensive and time consuming to commence such actions as it can be difficult to establish the amount of goodwill within your business name or brand.
In summary, if you have any doubt about which of the above names you should use, or if you have any questions, don’t hesitate to contact your client manager to discuss.
This newsletter has been produced by Stanley & Williamson as a service to its clients and associates. The information contained in the newsletter is of general comment only and is not intended to be advice on any particular matter. Before acting on any areas contained in this newsletter, it is imperative you seek specific advice relating to your particular circumstances. Liability limited by a scheme approved under Professional Standards legislation.