Many business owners have a misapprehension that they are protecting their business reputation, products, and services by merely registering a business or company name. In fact, the best protection becomes available on registering a Trade Mark.
BUSINESS NAMES
A business name is merely the name under which a business operates and one should not confuse a business name with a Trade Mark, which is a registered name or logo used to identify the source of the business’ goods and services. The Business Names Act seeks to protect the public by requiring those carrying on a business under a name other than their own name to register that name otherwise there are fines for carrying on a business under an unregistered name.
WHAT DOES BUSINESS NAME REGISTRATION GIVE?
The Office of Fair Trading will ensure that a proposed business name will not cause confusion by being too similar to any existing registered business names or to similar company names registered with ASIC. On registration, the owner of that name must at all times:
WHAT REGISTRATION DOES NOT DO?
Registration of a business name does not provide any protection for the name, mark, or goodwill of a business. Registration of a business name does not:
Registration only prevents another person from carrying on a business under that name in Victoria and does not prevent another business located in another state from using that same name, or prevent the importation of goods with similar or substantially the same markings flooding the market.
HOW DO TRADE MARKS BENEFIT THE BUSINESS?
A Trade Mark is a word, phrase, or symbol that indicates the trade source of goods or services manufactured, provided, or marketed by a particular trader. It is a “badge or origin.” The use and registration of a Trade Mark (rather than a business name) gives better protection for trade names, Trade Marks, logos, and goodwill of the business. The Trade Marks Act legislation protects owners of registered Trade Marks against the unauthorised use of Trade Marks, which are distinctively associated with the goods, or services of a particular business.
Registration of a Trade Mark results in benefits to the registered owner and the public, for example:
DO YOU HAVE A TRADE MARK CAPABLE OF BEING REGISTERED?
The term “Trade Mark” signifies the rights about a word, device logo, or symbol registered under Trade Mark legislation; for example, one can register these words, devices, logos, and symbols as Trade Marks:
WHAT YOU CAN DO IF SOMEONE INFRINGES THE TRADE MARK
The main remedies available for infringement (i.e. used by someone without permission) are:
WHAT DO YOU DO NOW?
Do not rely on registration of a business name, if registration of a Trade Mark is appropriate and available. Registration of Trade Marks can add significant value to a business and ensure the most effective legal remedies available against competitors who infringe the Trade Mark.
NEED MORE INFORMATION
Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344.
Telephone:
(+61)3 9646 3334
POSTAL ADDRESS:
PO Box 745 Port Melbourne Victoria
Australia 3207