A message from our Legal Partner, SprintLaw
There’s a lot more to business names than simply picking one out and sticking with it.
While a business name is primarily used to identify a business, registering a business name comes with regulations, rules and additional legal protections you may want to look into.
This will impact whether or not two businesses can have the same name or not – keep reading to learn more.
Can Two Businesses Have The Same Name In Australia?
No, two businesses cannot have the same name in Australia.
Once you register a business name, another business cannot register the same name as yours. Likewise, if another business name has already been registered, you cannot go ahead and register the same name or something that is similar to it.
The Business Names Register can help you see what names have already been registered.
Even though registering a business name prevents someone else from registering the same or a similar name, it does not mean you have legal ownership over the name.
Getting a business name trade marked does grant you those legal protections. Therefore, if you have a registered business name and it is not trade marked, someone else can still go ahead and trade mark that name.
How To Dispute The Same Business Name
If someone has registered the same or a similar name as your business, there are a number of options you can consider.
Firstly, if the business name has been trademarked, then you can claim a trade mark infringement.
However, if the business name in question is not trademarked, there are still a few options available:
- Make a claim to the Australian Competition and Consumer Commission (ACCC) regarding passing or misleading and deceptive conduct
- Ask Australian Securities and Investments Commission (ASIC) to review their decision to register a business name
The option you choose to take will depend on the specific grievances of the situation. For example, if another business is trying to pass as yours by having the same or similar name, then it’s wise to make a complaint to the ACCC.
How To Register A Business Name
A business name can be registered online through the Business Registration Service. You will be required to fill out the relevant details and submit the application upon paying a fee.
Alternatively, if you would like the help of a legal professional in getting your business name registered, contact us for help.
Whichever way you choose, make sure don’t skip this step when starting your business! All businesses must have a registered business name in Australia unless they are a sole trader or partnership business using their own name.
Can Two Businesses Have The Same Name In Different Countries?
Registering your business name only makes it official in Australia.
Therefore, you may have a certain business name registered in Australia, however, it is perfectly acceptable for another business in a different country to have the same name.
If you’ve registered your business name as a trade mark, the same rule applies. Your business name will be protected under trade mark law in Australia, but this protection does not apply overseas.
You’d need to follow a separate process to register an international trade mark, and this process might differ depending on which countries you wish to conduct business in.
Is A Business Name The Same As A Company Name?
A business name and a company name are not the same thing. This is due to the fact that a business and a company are not synonymous with one another. Not every business is a company.
Therefore, if a business owner wants their venture to have the legal structure of a company, they must make an additional, separate application with ASIC to register their company. During this process, they are required to register a company name.
Often, a business will have both a business name and a company name. A business name is usually the name a company will trade under and are recognised by the public with.
A company name, on the other hand, is usually used when signing contracts, other legal matters or dealing with government agencies.
A company has the business name ‘Blue Clouds’. Their company nameis ‘Blue Clouds Pty Ltd’.
The only time a company does not need to register a business name is when their company name is identical to the business name they plan on using.
What Is A Trade Mark?
A trade mark is a form of intellectual property that is distinct and unique to a business. There’s a broad definition of things that can be trade marked including music compositions, colours, phrases, symbols, pictures and even business names.
In order to get a trade mark legally protected in Australia, you will need to register it with IP Australia.
Once a trade mark is registered, only the owner of the trade mark has the legal rights to use it. This lasts for 10 years with the option for renewal.
Are Australian Trade Marks Valid Overseas?
If you register a trade mark in Australia, then it is only valid in Australia.
However, you still have the option to get your trade mark registered in another country.
In order to get your trade mark registered overseas you will either have to:
- Submit a trade mark application directly to the country you wish to get your trade mark registered in
- Use the Madrid System
To submit a trade mark application directly into the country you wish to get it registered in, you will need to do some research about their trade mark offices, regulations and authorities. Once you have a clear idea, you can go ahead and submit an application directly to that country, using their internal process. For example, in the UK, you’d need to register a trade mark with the Intellectual Property Office (IPO).
Your other option is to use the Madrid System. The Madrid System is the official international trade mark system. It allows you to file a single application (and a one time fee) to submit a trade mark application in multiple countries, as long as those countries are part of the Madrid System.
Currently, there are 128 countries participating in the Madrid System, so there’s a good chance you’ll find the country you are looking for there.
If you file an application to register a trade mark in multiple countries through the Madrid System, it is ultimately still a single application to all those countries. Therefore, your application may come back with some rejections and some approvals.
What Happens In A Trade Mark Opposition?
Trade mark opposition is a step that is part of the trade mark registration process. Once a trade mark application has been submitted and approved, that trademark will then go into opposition.
The period of opposition lasts about two months and during this time, members of the public have the option to come forward and dispute the trade mark being registered.
If a trade mark you have registered goes into opposition, then you will be notified. Once you have received a notice of opposition, you then have one month to submit a notice of intention to defend. After this, both parties are able to submit evidence to support their claims.
When the evidence has been submitted, either you or the other party can request a hearing or simply let the matter be evaluated based on the evidence you had already provided.
Business Name Vs Trading Name
You may have heard the term ‘trading name’ before. It essentially refers to the name businesses use to conduct their operations.
The term trading name has been phased out by the Australian government after 28th May 2012 when the Business Names Register came into effect. After that, business names needed to be registered with the relevant authority (unless they met one of the exceptions we mentioned).
Since then, trading names are now just business names.
Other Ways To Protect Your Intellectual Property
The most common way to protect your intellectual property is to register a trade mark with IP Australia.
However, it’s not as straightforward when it comes to protecting other forms of intellectual property.
Not all types of intellectual property can be registered through IP Australia (or any other government agency).
Therefore, it’s important to have the right legal documentation to help protect your intellectual property. Your business may possess trade secrets, copyright material or other confidential possessions that should be kept within the business.
In this case, it’s important to look into getting Non-Disclosure Agreements(NDAs) and Confidentiality Clauses so when other parties such as employees, contractors or potential investors gain access to these materials, they are legally bound to keep it private.
Business names are an essential part of a business’ identity. If you don’t want your business name being registered by another, it’s worth looking into getting it protected first.
To summarise what we’ve discussed:
- Two businesses cannot register the same name in Australia. However, a business registration does not prevent another person from getting the name trademarked
- If you want to avoid this, get your business name registered as a trade mark with IP Australia
- A business name can be registered online – contact us for assistance with the process
- Two different businesses can have the same names in different countries – registration only applies to within Australia
- A business name and a company name are not the same
- Trade marks are something that is distinct to a businesses identity
- Australian trade marks are not valid overseas, in order to achieve this you will need to do additional applications
- Trading names no longer exists, they are simply all business names now
- Other ways to protect your intellectual property are through NDAs and confidentiality clauses
Chat To An IP Lawyer
When you are dealing with matters regarding intellectual property, it’s good to talk to someone who is an expert in the field! Our IP lawyers are available and happy to help – reach out to learn more.
If you would like a consultation on business names or IP protection, you can reach us at 1800 730 617 or firstname.lastname@example.org for a free, no-obligations chat.