Startup Law

The difference between trade marks and business names

A common mistake made by founders when they start their business, is they incorporate it with ASIC, register a business name, and then assume they are afforded some intellectual property protection. But that’s not the case. 

Business names

According to the LawAdvisor Research team, a business name is the name under which your business operates. 

In Australia, registration is compulsory and must be completed before the business starts trading. Unlike a trade mark, a business name does not give the founder proprietary rights for the use of the trading name.

Trade marks

“A trademark is used to distinguish your goods or services from those of other businesses. It can be a letter, number, word phrase, logo, picture, etc,” the LawAdvisor Research team says.

“Registering a trade mark gives you property rights that can be enforced under law. For example, registration in Australia gives you the exclusive right to use the trade mark as a brand name for the goods or services specified in the registration, and you can take legal action to sTop other people from using the same or similar trade mark. You do not have to register your trade mark in order to use it, but protecting an unregistered trade mark may be difficult.”

Those that would like to register a trade mark in multiple countries have two options: apply for registration in each individual country, or make a single international application to IP Australia nominating the specific countries in which protection is required.

The second option is only available for those countries that have signed up to the Madrid Protocol. A list of those countries can be found here.

Mistakenly believing registering a business name is a mistake Madgwicks IP expert Dudley Kneller comes across regularly.

“When you obtain a registered business name you’re only obtaining a right to trade under that name and to use that name in the state you registered it in.” he says.

“It doesn’t give you any IP rights at all.”