Here are 5 important things to consider when registering a business name in Australia. It’s important to know how to register a business name if you are starting a business.
In Australia, it is a legal requirement to register a business name that you want to use to trade. This is so that your customers know who is standing behind your name. A good startup lawyer can help you to choose and register a business name.
This article explains how to register a business name in Australia.
Farrah Motley wrote this article. Farrah is the Director of Prosper Law and a business contract lawyer. She holds degrees in Law and Business (majoring in accounting) from the Queensland University of Technology. Farrah has over ten years of experience as an Australian lawyer.
Overview of registering a business name
In this article, I will take you through the following steps to registering a business name:
- Research the business names of your competitors
- Search the trade mark register
- Check domain name availability
- Register the business name
Research the Business Names of Your Competitors
Every business and industry is different. You can either break away from the crowd and register a business name that is completely different to other businesses in your industry. You may also decide to follow the general naming conventions for businesses like yours.
For example, businesses that provide building and pest inspection services tend to include a reference to ‘building and pest’ in their business name. This makes it easy for customers to know what it is that you do, but it also means that:
- you risk having a business name that is (legally) too close to a competitor’s business name
- you risk confusing your customers
- the business name may be insufficient to distinguish your goods and/or services from those of your competitors
For these reasons alone, it’s important to think long and hard about what you are going to name your business. If you have any questions about the business name registration process, contact a startup lawyer.
Search the Business Name Register
The next step is to search the Australian Business Register.
It’s important to know that just because a business name is available to register, it does not mean that you won’t encounter problems with that name.
For example, the name may be available on the business name register. However, using it would cause you to infringe on someone else’s trade mark.
And the worst part? You may not become aware of this for a long period of time. By that point you may have invested a significant amount of money and effort in the brand.
This is a good reason why it can be beneficial to hire a startup lawyer before committing to a name.
If the name is available and you’ve followed the previous steps; you’re ready to check the availability of the domain name.
Search the Trade Mark Register
Even if a business name is available to be registered on the Australian Business Register, its use may still infringe upon a trade mark.
If a business name is available on the Australian Business Register it just means that no one else has registered that name.
However, another business might have a trade mark that gives them a better right to that name than you. If you register and use a business name that someone else has a better right to, you could get into trouble.
As any startup lawyer will tell you, there is a common misunderstanding about business names. People think that if you register a business name on the Australian Business Register, it becomes an intellectual property right and an asset that you own. However, all you are really doing is buying a right to trade using that name.
It is a legal requirement to register a business name if the business name is different to a company name. For example, your company name is ‘Peter Potters Plants Pty Ltd’. However, you trade as ‘Betty’s Best Botanicals’. Because the names are different, you must separately register that business name. A startup lawyer can do this for you.
This registration enables your customers to identify the person (or company) that stands behind the name your customers interact with. However, registration is not the same as ownership, because there is no intellectual property in a business name.
A trade mark, on the other hand (which can be registered or unregistered), gives its owner a right to use that name (or its stylised logo). The registration will apply in relation to the relevant goods and/or services, to the exclusion of everyone else. A startup lawyer can register a trade mark for you.
If you register a business name without checking to see if someone has trade mark over that name, you may be unknowingly infringing that person’s intellectual property rights. A cease and desist letter is usually issued when a person’s trade mark is infringed. Further legal action may be taken if the cease and desist letter is not complied with.
This can lead to customer confusion, disruption to your business and the expense associated with rebranding and changing your business name. An ecommerce lawyer can help you to avoid this.
Check for registered trade marks through IP Australia
If you’re going to register a business name it’s important that you not only search the Australian Business Register, but also the Trade Mark Register. This can be done through IP Australia. The search is free and is a public register of all Australian trade marks.
You can do this by searching the whole or a part of the business name you want to register or hiring a startup lawyer to do this for you. If your search finds a result that is similar to the business name you want to register and relates to the class of goods and/or services relevant to your business, you may want to consider choosing a different business name.
Alternatively, choose a business name that is completely different to the registered trade mark.
Can a registered business name infringe on an unregistered trade mark?
Yes, an unregistered trade mark can still be infringed by a registered business name.
Unregistered trademarks are not registered with IP Australia and do not have the protection of the Trade Marks Act 1995. However, unregistered trademarks are still protected by law under the tort of passing off. It is also protected under the Australian Consumer Law which prohibits misleading and deceptive conduct.
If you’ve done your research on your competitors, hopefully, you will have identified any unregistered trademarks.
Check the availability of the domain name
If the proposed business name is available on the business names register and does not infringe on a registered or unregistered trade mark, the next step is to check the availability of the domain name.
I often see entrepreneurs get excited about a business name. But then they discover there is no domain name available that exactly matches the brand name.
You can check domain name availability by searching on websites such as GoDaddy, Wix and Squarespace.
A summary of steps to register a business name
Follow the detailed steps set out in this guide to register your business name
|Step||What needs to be done|
|Develop a list of potential business names||Write a list of potential names. Decide on whether you want to use an obvious and relevant brand name. Or you could choose a name that is unique.|
|Research the business names of your competitors||Look at the names of your competitors. Cross out any potential business names that are too similar|
|Search the business name register||Search the business name register to confirm your proposed business name is available|
|Search the trade mark register||Search your intended business name on the trade mark register; are there similar names being used in the relevant class(es) of goods/services?|
|Check the availability of the domain name||Check the availability of your business name as a domain (or something close to it)|
|Register the business name||Register your business name and choose how long you want the registration to apply for|
How can Prosper Law help?
Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.
If you need to talk to an online lawyer, get in touch today.
Contact the team at Prosper Law today to discuss how we can provide you with business law advice.
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