A business name is a name or title under which a person or business trades. A trademark is a letter, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or a combination of these.
A company is a separate legal entity and it must be registered under the national corporations law. If a company wishes to trade using a name other than its own, it is necessary to register that trading name as a business name.
Many people think that registration of a company and its business name protects one’s rights in a trademark. However, that is not the case. Trademarks have also to be registered. Registration gives the owner the right to exclusively use or control the use of the mark.
Always check the proposed name of your business with the Department of Fair Trading, Australian Securities and Investment Commission and the Trade Marks Office of IP Australia.
Not all trademarks can be registered. A trademark is not registrable if it is not capable of distinguishing your goods or services from similar goods of other traders. Trademarks which conflict with an earlier one, or which would mislead the public about the nature of the goods and services are also difficult to register. Searches can be made for free on the IP Australia website.
Once your business name is registered, it must be on public display outside every place of business, appear as registered on every letter, invoice or other document used by the business, and the certificate of registration must be displayed prominently at the location you have described as the principal place of business.
Reproduced with the permission of the Law Society of New South Wales.
For further information or advice pertaining to Business and Commercial Law, contact the experienced team at Rockliffs Lawyers today.