Business Names and Trade Marks –Is There A Difference?
Selecting a business name to establish a brand presence is one of the most significant decisions you will make when starting your own business. However, a common and often costly misconception is that registering a business name or company name will provide the same protection as a registered trade mark.
Unfortunately and to the surprise of many, it does not.
Contrary to what many people might think, a registered business name or corporate name is not something that protects you – it is merely an administrative step that is required by law to let people know who the operator of a business is.
What follows from this is that a registered business name or a company name does not, by itself, give a trader any intellectual property rights in that name (such as conferring any monopoly rights over a brand name or logo).
A trade mark on the other hand is any word, name, symbol, or design, or any combination used in business trading in order to identify and distinguish the goods and services of an entity from another.
In short, a trade mark is effectively a brand name.
Unlike a business or company name registration, a trade mark registration gives the owner the exclusive right to use, licence or sell the trade mark within Australia for the goods and services for which it is registered.
Registration also gives the owner the right to prevent other people from using a similar trade mark in connection with the goods and services that the registration covers.
Should I Apply for A Trade Mark?
It is advisable to seek trade mark registration where available as the statutory rights you get upon a successful registration are much wider and easier to enforce than the rights you have (if any) without registering the trade mark.
For instance, while there are some statutory and common law remedies available without registration if someone else uses your mark (or a similar mark) in a way which causes your business harm (for example by misleading or confusing your clients that there is some connection between you and the other trader), enforcing these rights can often be difficult and very costly. If you register your trade mark however, you will get maximum protection and be able to take steps to prevent others stop others from coming along and confusing the market.
If you have not protected your intellectual property rights and are using a brand name that your customers connect with, you need to think about formally protecting those rights. If you have any questions, please contact Tim Graney on (08) 8233 7221 or by email to Tim.Graney@johnstonwithers.com.au .