Choosing your business name is an important part of the start-up process. It is often the first hurdle many budding entrepreneurs need to jump as they try to find a business name that is clever, memorable and relevant to their industry.
Once you decide on your business name the next step is to register it with ASIC (as either a business name or company), then purchase your domain name. You can then start building your website and produce your stationery and supporting marketing collateral. You are then ready to officially launch the business, however, out of the blue, you receive a notice claiming that you are breaching someone’s registered trademark. How can this happen when you registered your business with the governing body, ASIC?
Unfortunately registration with ASIC doesn’t give you exclusive rights over use of the business name. ASIC doesn’t track what type of business activity you conduct and it doesn’t give you any proprietary rights, particularly in relation to goods or services/activity using that name. It’s only when you register your trademark with Intellectual Property (IP Australia) that those rights become yours. By registering a trademark for your business you are able to register the business activity associated with that name and/or logo. In other words, IP Australia is protecting the business activity that is associated with the name and logo.
The cost of registering a trademark in Australia starts at around $1,000 including all Government and professional fees. The actual price will depend on the range of products or services you wish to protect under your trademark and registration lasts for 10 years Australia wide. The obvious question is, how much will it cost to not register your trademark? You need to weigh up the value of stopping others using similar names/brands or logos and the possibility of you inadvertently infringing an existing trademark.
Unfortunately, ASIC’s system is not linked to IP Australia’s and they will still register your business name irrespective of whether it has already been registered as a trademark with IP Australia. If a name (or similar name) is already a registered trademark, the owner has a right to do business under that name and may prevent you from using the name.
To avoid any surprises with your business name we recommend you follow these five steps:
1. Search the ASIC website for the availability of your chosen business name at: https://connectonline.asic.gov.au/RegistrySearch/faces/landing/bn/SearchBnRegisters.jspx?_adf.ctrl-state=pcvyih47a_4
2. Search the IP Australia website for your business name at:
3. Ensure the domain name is available, plus all derivations such as .net, .com, .org and any overseas countries you might expand into by visiting: http://www.ausregistry.com.au/tools/domain-availability
4. Register the name with ASIC and the business name as a trademark with IP Australia.
5. Finally, register all the similar domain names (and hold onto the ones you won’t use) to protect your name from copy cat businesses.
Trademarks Can Add Value to your Business
Once registered, you can display your trademark with a registered trademark symbol (e.g. XYZ Builders®). Customers see the trademark symbol and associate it with a business that has gone through a regulatory process and may gain the impression that it is a long standing or large enterprise. You can also generate additional income by licensing your trademark to others for a fee and prospective buyers of your business know that a business sold inclusive of registered trademarks will be able to continue to trade without infringing the rights of others in this country.
Registering your preferred business name together with the trademark and domain name is an important part of the start-up process. Failure to cover all these bases could prove costly and it might be prudent to even have a backup business name in reserve in case you hit a hurdle.
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