Why a business name isn’t enough: The difference between a trade mark and a business name.
Are trade marks and business names the same thing?
In short, the answer is no. Whilst registering either can give your business and brand elements of protection, trade mark registration is the only way you can really be effectively and fully protected by the law.
What is a trade mark?
A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with, or provided, in the course of trade by a person from goods or services so dealt with or provided by any other person (Trade Marks Act 1995, s17).
Commonly referred to as a ‘badge of origin’, essentially, a trade mark is a distinctive sign that is applied to goods or services to identify the source of those goods or services. There is no limit to what constitutes a ‘sign’ in Trade Mark Law. Hence, it can be anything from your brand name to the design of your logo or even the colours of your brand.
As mentioned previously, trade mark registration is one of the most effective ways to protect your brand in the market. Trade mark registration means that you have an asset for your business which can be sold, licensed to others or used as a form of security. You can control the use of the brand and stop others from using it. Trade mark registration also places the public on notice of your rights which can be an effective deterrent for would-be infringers.
What is a business name?
Simply, it is the name under which a business trades. It differs from a trade mark in that it is a compliance requirement, not an asset protection tool. A business name must be used exactly as it is registered, but there are no exclusive rights in a business name. So, you have little to no rights to stop your competitors from registering and using similar business names.
Nevertheless, choosing a business name remains an important part of your brand creation strategy and will help in conveying the right image when attracting your core customer base. Having a distinctive business name will allow you to be easily identifiable from your competitors, as well as providing a flavour of the range and quality of the goods or services you offer.
Once you have decided on your business name, you will need to check it against the national Business Names Register. Here, you can search existing business names and enter information to ensure the name you want to register is available to use. However, be warned that the Business Names Register only searches for identical business names that are registered and is not an effective brand availability or clearance searching tool.
Before registering your business name, you should also establish that there are no trade marks already registered for it or in use in the marketplace. This could not only prevent costly legal procedures in the future, but will give you peace of mind that you have the exclusive rights to use your business name as a brand without infringing someone else’s brand.
So, what is the next step?
As you know, here at Ethikate, we are brand protection specialists. We can not only assist you in developing an effective brand protection strategy during the brand development phase, but we can also guide you through the legal processes of implementing these strategies, including registering your brand as a trade mark.
Having a strong brand protection strategy is essential when it comes to safeguarding your most valuable asset, so contact us today to get started!
Find out more below, or explore our site:
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Designed as a ‘starter session’ for startups and scaling small business owners taking the first step towards proactive and strategic brand protection, the Brand & IP Protection Mini Roadmap equips you with all the insights you need to get started. Following a comprehensive initial consultation, we’ll create a tailored action plan to protect your brand, and lay the foundation for your success.
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Launch, grow and market your new brand and products with confidence. We’ll develop and implement tailored trade mark filing strategies that align with your business objectives, protecting your house and product brands in key markets.
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Protect your services brand completely.
We’ll secure and manage your trade marks, protecting your brand identity and intellectual property.