A common misconception is that a trade mark is the same thing as a business name, company name or domain name.

It’s not.

Business, company and domain names, and trademarks are four distinct identifiers that serve different purposes in the marketplace and registration of them accords markedly different rights.

Business names

A business name is the name under which your business operates and it is connected to your Australian Business Number (ABN). You only need to register a business name if you are trading under a name that is not your own. Business names and company names are registered with the Australian Securities and Investments Commission (ASIC). While they’re required to run a business in Australia, they don’t stop others from using the same or similar name.

As such a business or company name does not give you legal rights to that name. This means that if someone else uses your business or company name for their business, you don’t have any rights to stop them.

Domain names

Domain names are issued by private internet companies and registered by the .au Domain Administration. The purpose of a domain name is to secure the web URL only.

A business, company or domain name does not confer a proprietary right in that name to its holder akin to the protection offered by registration of a trade mark as they do not provide the name holder with an exclusive right to use that name.

A general misconception, particularly amongst small to medium sized companies, is that at the least a business or company name registration offers immunity from infringement of another person’s registered trade mark. As a result, many businesses or companies do not search, or they undertake insufficient searches, of the trade mark register to identify potentially conflicting trademarks prior to registration of their business or company name. By not properly assessing whether a prior right has been secured by another party, all goodwill built on a business or company name is basically “up for grabs”.

IP Australia has received information that even business advisers have offered advice to the effect that business name registration is a cheaper alternative to trade mark registration for name protection. This is not correct and it offers a business or company owner a false sense of security.

Trade mark registration

A trademark registration will trump a business, company and/or domain name at all times whether it be your name, your logo, or your products.

Businesses who do not own registered trademarks may have to rely on the common law action of passing off.

Passing off occurs when a party represents their goods and services as the goods or services of someone else. It is not only difficult but very costly to enforce a passing off claim and is completely avoidable by having an IP strategy from the offset.

For advice relating to trademark registrations or infringements, or any IP matter, contact one of our IP lawyers.