This blog was authored by Jane Rawlings Senior Lecturer -Faculty of Law, University of Technology Sydney(Opens in a new tab/window), The views expressed do not necessarily reflect the views or position of IP Australia, and should not be taken as constituting advice. If you require guidance specific to your situation, you should consider seeking professional advice. 

 

What New Businesses Need to Know Before Trading in Australia 

You need various registrations to start or run a business(Opens in a new tab/window) in Australia. You may choose to trade in business as a sole trader, through an incorporated company or a partnership or a joint venture. Generally, most businesses need two things to be able to trade in Australia: 

  • An Australian Business Number (ABN); and
  • A registered business name. 

An ABN(Opens in a new tab/window) is a unique identifier of your business for taxation purposes in Australia and is registered with the Australian Taxation Office (ATO). A registered business name(Opens in a new tab/window) is different to an ABN. It is registered nationally with the Australian Securities and Investment Commission (ASIC) as the unique name of your business – the name you tell your customers. Among other things, it lists the name of the business name holder, the address your business trades from and what its ABN is.  

Both registered business names(Opens in a new tab/window) and registered trade marks(Opens in a new tab/window) appear on a register which anyone can search for free to check who owns the registration. That is really the end of any similarity between them.  

I have a registered business name and an ABN – should I also register the name of my business as a trade mark with IP Australia? 

The answer in the end is that you need a registered business name to trade in Australia – but a registered trade mark gives the name of your business much stronger protection.   

Here are some benefits of having a trade mark registration: 

  1. A business name registration is limited.   Registering a business name only prevents someone else from registering an identical business name or one which is nearly identical to that of your business. It doesn’t prevent someone else registering another business name which is similar to your business name and which could be confused with it. A registered trade mark prevents someone from using the same name or a deceptively similar name on their business.
  2. A registered trade mark can protect any logo(Opens in a new tab/window) you use with your business name to promote your business.  It also can protect your business name represented in a particular style, type font or colour. Business name registration simply can’t do this.
  3. A trade mark, including a trade mark for a business name, can be enforced in the  https://www.fedcourt.gov.au/law-and-practice/national-practice-areas/ip/trade-marks(Opens in a new tab/window) Australian courts by an action for trade mark infringement under s120 Trade Marks Act 1995(Opens in a new tab/window). Among other things a judge can make orders that the infringer stop the infringement, effectively forcing the infringer to re-brand their business. This isn’t possible with a registered business name. You can’t enforce a registered business name against a business using a similar name, simply because you have registered that business name. Using that business name without your permission might make the other person legally liable to you in other ways, apart from trade mark infringement – but that’s a story for another day.
  4. A registered trade mark also protects your business and its business name from liability for trade mark infringement. A registered business name cannot do this. It’s a good idea to do a trade mark search to check that someone hasn’t already registered the business name you want as a trade mark using IP Australia’s free online search tools (TM Checker(Opens in a new tab/window) or Australian Trade Mark Search (ATMS)(Opens in a new tab/window)). Then check online using a search engine such as Google to make sure that someone else isn’t already using that name on their business, whether on a website or on social media.
  5. You need a registered business name to trade in Australia. The name of your business is part of the goodwill or reputation of your business and its branding. But a business name which is also registered as a trade mark is a valuable intellectual property asset of your business – one which can be licenced or sold by assignment to another person.
  6. If your business takes off, you can file international trade mark applications through the Madrid System(Opens in a new tab/window) or directly to other IP offices to protect the name of your business overseas, as well as the trade marks you use on the goods you sell or the services you provide. Business name registration is a national registration in Australia, not overseas. Other countries may not require businesses to register business names at all – New Zealand is an example. 

Final thoughts 

Trade mark registration can protect the valuable image of your business and how you promote your business – including the name it trades under and the names of the goods it sells and the services it provides.  

Further reading 

IP Australia has helpful resources available for anyone who wants to apply for a trade mark. You can also check whether anyone has already registered the name you are interested in as a trade mark. 

Difference between a business name and a trade mark | business.gov.au(Opens in a new tab/window)  

IP First Response 

What are trade marks?(Opens in a new tab/window) 

Australian Trade Mark Search(Opens in a new tab/window) 

TM Checker(Opens in a new tab/window) 

(Opens in a new tab/window)ASIC information on registered business names(Opens in a new tab/window) 

Register a business name(Opens in a new tab/window) 

Disputes about similar business names | ASIC(Opens in a new tab/window)