Business names and trade marks – What they mean for your business

In New South Wales, the Business Names Act 2002 makes it compulsory for you to register a business name if you have been conducting business under a name other than your own name or your company’s name.

NSW Department of Fair TradingIt is important to note that business name registration does not give ownership of the name, nor does it provide protection to the name. At the very best, a business name registration prevents other businesses from registering that name. This is because the primary purpose of the Business Names Act 2002 is to provide to the public a register that the public can inspect. This allows the public to basically verify the identity of the person or company carrying on business under a name.

The NSW Department of Fair Trading is responsible to administer and register business names. The NSW Department of Fair Trading also has some discretion to deny registration of a business name if it is “undesirable” or if it falls under a category of names which cannot be registered.

Keep in mind as well that a business name can be registered in one state – but can be registered by another person or business in a different state!

If you would like to protect your business name and stop other people from using your business name, you should consider the benefits of registering your business name as a trade mark. A registered trade mark can give you the exclusive right to use of that trade mark within Australia – not only can it protect you from other businesses challenging your trade mark, it gives you the right to stop others from using your trade mark. In fact, a registered trade mark may prevail over any protection given by the registration of a business name.

In addition to this, trade marks are considered proprietary – it is an intangible asset that adds value to your business. As of such it can be sold, licensed, assigned, and even used as security. Proof of registration is considered good evidence towards ownership of a trade mark.

It is important to understand the distinction between a registered trade mark and a registered business name. If you carry on business under a registered business name, you should consider bolstering your protection by registering your business name as a trade mark.

If you need advice on these issues or you need further information, you should contact your solicitor and discuss the matter with them.

About the author

Kenneth Ti is an Associate Solicitor with Phang Legal and a graduate from the University of New South Wales. He has a background in financial services and insurance, and is focused on commercial and intellectual property matters. Kenneth is a strong believer in small business, the community, and pro bono work.

www.phanglegal.com.au