Do I need a trademark, or is a business name enough?

by Jacqui Brauman

 

What is the difference between having a business name versus having a trademark?

Anyone who wants to trade as a business in Australia needs an ABN.

And if they’re not trading under their own individual name, they need to register a business name.

As an example, if Joe Bloggs is an engineer and wanted to trade as a sole trader, then he wouldn’t need to have a business name, because his ABN could be in his own name and he could just be “Joe Bloggs, engineer”.

trademark or business name

However, Joe Bloggs still wanted to trade as a sole trader, but wanted to call his business “Pro Engineering”, he would need to register “Pro Engineering” as a business name. He would still have the ABN registered in his own name, but then he would also register a business name under his ABN. Then he would be able to trade as “Pro Engineering” instead of just “Joe Bloggs”.

If Joe Bloggs decided to create a company, he could register “Pro Engineering Pty Ltd” as the company name. Then he could trade as Pro Engineering, without having to register the business name as well.

But if he created a company called “XYZ Pty Ltd” and wanted to trade as “Pro Engineering”, he could need to register the business name against the company. Then he would be “XYZ Pty Ltd trading as Pro Engineering”.

None of those registrations protects Pro Engineer as an actual asset for Joe.

If you want to have your business name as an actual asset, which is protected and has value as a brand, you would also apply to register a trademark.

If you want to create something quite big, and you want your brand to be recognisable, and you wanted to protect it to make sure that other people don’t leverage off your brand, then that’s when you need to think about having a trademark.

The registration of a business name has limited protection. ASIC just doesn’t like having multiple registrations of the same name, so if Joe Bloggs owned the business name “Pro Engineering” and someone else tried to register the company “Pro Engineering Pty Ltd” they may be blocked from doing it. But they might not be blocked from registering “Pro Engineering (NSW and QLD) Pty Ltd.

In this situation, trying to stop someone else from having a similar name is nigh on impossible.

Or, if someone started up a Facebook Page or Group called “Pro Engineering”, Joe Bloggs would have no legal right to stop them.

If you want to protect your brand, you would then register a trademark.

A trademark is not just a name. A trademark often includes the font, the colors, and if there’s a little image with your brand, then that is included in the trademark. So it’s the whole thing. It’s not just the words.

With a registered trademark, you can legally compel others to ‘cease and desist’ if they use a name similar to your trademark. If they don’t stop, you can get an injunction to make them stop, and then you can sue them for damages to your brand.

A trademark has a lot of protections built in, a business name does not.

If you want to go down the path of registering a trademark, TBA Law doesn’t do that directly. We are not trademark attorneys, but we do have two or three close referral partners that we can send you over too, to take you through that process for fairly reasonable prices.
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