Differences between business names and trademarks

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It is a common misconception that business names and trademarks are interchangeable. This is primarily due to the fact that a business will use the same word or words for their business name and trademark.

So what are the differences between a business names and trade marks?

What is a business name and how does it differ from a trademark?

A business name is a name or title under which an entity conducts a business, whereas a trade mark is a form of brand protection which distinguishes between your products or services and those belonging to your competitors.

The key difference between business names and trade marks is that trade marks can be letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures, movements, aspects of packaging, or a combination of these, whereas a business name is simply the name or title of your business.

When should you register a business name?

You will need to register a business name if you carry on business within Australia and are not trading under your own name.

For instance, if we operated our business through a company called Legal Services Pty Ltd, we would register Axe Legal as our business name.

However, you will not be able to register a business name if you are:

  • operating as an individual and your operating name is the same as your first name and surname;
  • in a partnership and your operating name is the same as all the partners’ names; or
  • an already registered Australian company and your operating name is the same as your company’s name.

When is a trade mark and business name available to use and register?

To check whether a trade mark and/or business name is available to use and register, you will need to conduct searches to ensure there are no similar trade marks, business names or company names registered or in use by competitors in the same field of business.

To ensure your business name does not infringe on an existing registered trademark, use IP Australia’s Australian Trade Mark Search. By using this search, you will be able to look for existing trademarks and make sure that your business name has not been registered as a trade mark.

Will a business name grant you more protection than a trade mark?

Unfortunately, registering a business name will not provide you with exclusive ownership of the business name, nor will it prevent:

  • other people from being able to register and use a similar business name; or
  • someone who has registered the business name as a trade mark from using it.

Moreover, where you register a business name that is similar to someone else’s registered trade mark, you could find yourself in the midst of an intellectual property dispute.

This is why you should always:

  • conduct a trade mark search before deciding on a business name; and
  • register both a business name and a trade mark (where appropriate) in order to obtain exclusivity over the business name.

In addition to obtaining exclusivity over a business name, registering a trade mark will ensure that you can:

  • reserve the mark for use while your business is being set up;
  • grant entities with exclusive rights to use the trade mark;
  • licence, transfer or sell your registered trade mark;
  • exercise the right to stop others from using the same or similar trade mark for the products and services; and
  • enforce your rights against misuse of your registered trade mark by competitors.

Click here if you want to know more about Intellectual Property.

How we can help

  • Advise you about how best to protect your intellectual property rights
  • Work with you to develop an intellectual property strategy that works for you
  • Register a business name for your business
  • Register trade marks (i.e. brands and logos) in Australia and internationally, including responding to requisitions by the trade marks office 
  • Help you develop prevention methods in order to ensure that your intellectual property is not revealed to third parties