In Short
- Registering your business name with ASIC only allows you to operate under that name, but it doesn't provide exclusive rights or protection.
- Trade mark registration with IP Australia offers nationwide protection, giving you exclusive rights to your brand name, logo, or slogan.
- A trade mark can be licensed or sold, creating valuable assets for your business, unlike business name registration which offers limited protection.
Tips for Businesses
Register your trade mark with IP Australia to secure exclusive
rights to your brand identity. While business name registration is
important, it doesn't prevent others from using similar names.
Trade mark registration ensures legal recourse against infringement
and helps protect your brand's long-term value. Consider
international registration if expanding globally.
Establishing a distinctive brand identity is crucial for your business. However, many entrepreneurs mistakenly believe that registering a business name with ASIC provides sufficient protection for their brand name. While registering your company name is a necessary administrative step, trade mark registration with IP Australia is what safeguards your brand from competitors who may wish to profit off your hard-earned reputation. This article will highlight why prioritising trade mark registration is essential for long-term business success.
The Limitations of Business Name Registration
Imagine launching a unique online business. You register your business name with ASIC, believing you have secured your brand. Months later, a competitor emerges using a similar name but provides an inferior product. This causes consumer confusion, resulting in a decline in sales. This scenario illustrates the fundamental distinction between registering your business name with ASIC and registering your trademark with IP Australia.
ASIC registration merely allows you to operate under a specific business name, providing no exclusive rights to the name as a brand, and does not prevent others from using similar names. Trade mark registration, on the other hand, grants exclusive rights to your:
- brand name;
- logo; or
- slogan.
By trademarking your branding elements, you have the opportunity to pursue legal recourse against infringement and create a valuable business asset.
Trade Mark Registration vs Business Name Registration
The following table highlights the key differences between trade mark registration and business name registration.
| Feature | Trade Mark Registration (IP Australia) | Business Name Registration (ASIC) |
|---|---|---|
| Purpose | Protects brand identity (name, logo, slogan) for specific goods and/or services | Registers a business operating name |
| Protection Provided | Exclusive rights to use the trade mark nationwide for registered classes | Legal right to operate a business under that name |
| Scope of protection | Nationwide protection for specified goods and services | Permission to conduct business under the registered name. Does not prevent others from using similar names |
| Legal Rights | Provides legal recourse against infringement | Primarily an administrative registration. |
| Asset Value | Creates a valuable business asset that can be licensed or sold | Primarily an administrative requirement, it does not create a strong asset |
| Duration | Renewable every 10 years | Renewable annually or every 3 years |
| Primary Function | Protects intellectual property and brand equity | Registers a business identity for operational purposes |
| Key Benefit | Gives the owner exclusive rights to use the trade mark | Allows the business to operate legally under a name that is different to the owner's legal name |
Ensuring Brand Uniqueness
Before deciding on your business or brand name, you must create a brand name that is distinctive and unique to be able to register it as a trade mark. Generic brand names like "Sydney Plumbers" or "The Bargain Book Shop" will not qualify for trade mark registration. This is because other traders that provide similar goods and services may need to use these generic terms in the course of trade.
It is important to note that your business name does not necessarily need to be the same as your trade mark. Many large companies have an extensive trade mark portfolio consisting of the many brands they own.
Benefits of Trade Mark Registration
In Australia, registering your trade mark offers much stronger legal protection than relying on an unregistered trade mark. This is referred to as a 'common law' trade mark. A registered trade mark gives you exclusive nationwide rights and makes it far easier to take legal action against anyone who infringes your brand.
International Considerations
Trade marks are territorial. Registering your trade mark in Australia protects you against infringement and unauthorised use in Australia, not worldwide. If you plan to expand your business overseas, it is crucial to register your trade mark in each country or region in which you plan to trade. You can apply for international trade mark registration via the Madrid Protocol.
Key Takeaways
While business name registration with ASIC is a necessary step for your business, it offers limited brand protection. Trade mark registration with IP Australia is the cornerstone of safeguarding your brand, providing exclusive rights and legal recourse against infringement. By prioritising your trade mark registration, you can build a strong, distinctive brand that stands the test of time.
Navigating trade mark law can be difficult, making the expertise of an intellectual property lawyer invaluable. If you need help with trade mark registration, our experienced IP lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
What is a trade mark?
A trade mark is a sign that acts as a badge of origin in the marketplace for your brand. It can be in the form of a name, logo, slogan, colour, shape, or even a smell. You can read more about the importance of trade marks here.
How do I apply to register my trade mark?
To apply for a trade mark you must submit an application with IP Australia, the governing body that assesses trade mark applications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
