Business Name Trademark

One of the first steps to establish a brand can be to complete a business name registration in your state or territory. In Australia, each state and territory has a different office or government department that deals with business name applications (see below for a list of offices).

When you apply for a new business name, they will run checks to make sure you are not registering a business name that is the same or very similar to another in that state or territory or similar to a company name registered with ASIC (Australian Securities & Investments Commission).

However, before you run off to do a business name registration, it is important you do a range of checks yourself - ones which are not done on your behalf by the office concerned.

Make your VERY FIRST STEP a search online. For example use Google and search the possible use of your intended name as a product name, or the name of a business or other organisation.

If the online coast is clear, possibly the SECOND STEP is to register a domain name to establish your brand’s online presence. Once again, as a trap for new players, remember that the domain name registrar and auDA will not perform business, company or trademark searches on your behalf.

Therefore, as a THIRD STEP it is VERY important you perform an ATMOSS search (IP Australia) to ensure you are not breaching a registered trademark. The local government office or domain registrar you are dealing with will probably not advise of this, as it is your responsibility, not theirs to check for a business name trademark. Now here's the kicker.

Trade mark law and procedure is vastly more complex compared to the law and procedure for business, company and domain name registration. There's a full legal process for trade mark registration, while other forms of name registration are largely an administrative exercise. To get a trademark registration takes about 12 months or more, for other types of name registration it can be done in as little as 5 minutes.

Don't forget to also use the ASIC company and business names search to further eliminate the chance of registering a name that is already taken.

Not surprisingly, trade mark searching is an art best left to experts. By all means take an initial look yourself, but you'll do better to instruct an experienced searcher, who may be a lawyer or a trade mark attorney. It's not just words you have to consider, but also logos, combinations of words and graphics, which classes marks are recorded in, the status of marks (eg registered or not yet?), and the description of the products or services to which they relate. So it's not the simple "hunt and peck" searching that might be carried out by a chicken looking for seeds to eat!

For more information about the justweb™ trademark please read our statutory law rights page.

If your business, company or domain name registration is successful, and you haven't done the checks you should have BEFORE registration, six months down the track you may still receive a letter of demand from a lawyer, on behalf of a trademark owner, insisting you cease the use of your cherished business, company or domain name. You will have fallen for trap 101 and may be breaching the rights of a trademark owner. At that stage, it can be very costly indeed to either fight in court, or, if you decide not to fight, establish a new business identity and website address.

All of which might be saved by a simple 2 minute check before registering your business, company or domain name! As we've said, for greater certainty and security, use someone who is experienced in name registration and protection. Online searching of registers for business names, company names, domain names and trade marks is deceptively simple. The costs of coming to the wrong conclusions vastly exceed the $400 to $1,000 it typically costs to instruct an experienced professional to do a proper and relatively comprehensive search and advise on appropriate strategies.

Besides performing or commissioning these highly recommended searches for legal reasons, why would you want to register a business name or domain name that is already established anyway? Unless of course you are purposely "trading off" the established business name and their reputation, in which case, you may be asking for trouble.

These legal stoushes can get very messy and very expensive - so do your due diligence BEFORE registering your chosen names. This will not only save YOU time and money, but it will also save the trademark owner valuable time, expense and aggravation too.

Consider recent justweb™ experience. In the past week I have found THREE businesses who have come from nowhere, registered their business names, and established their websites, without the slightest idea to first check maybe someone has a trademark that they could be infringing upon. If they did perform such a search, they would then have two choices:

1) Decide upon a new, unique name they can call their own - not someone else's OR

2) Seek their own legal advice if they are unsure their chosen name infringes upon an existing trademark

So, do these two simple searches first, and if you really want to safeguard your own name, register a trademark.

For professional trademark and business registration advice, justweb™ uses and recommends the services of:

Dilanchian Lawyers & Consultants
The University Centre, 210 Clarence Street
Sydney NSW 2000 Australia
Tel (02) 9269 0229
Email Noric Dilanchian
Web www.dilanchian.com.au

State and Territory Business Registration Offices

Australian Capital Territory
Refer to the ACT Office of Regulatory Services website or phone (02) 6207 3000 for further information. Please note a registration fee will apply.

New South Wales
You can download an application form and register your business name over the counter at a Fair Trading Centre. Please note a registration fee will apply. Refer to the NSW Office of Fair Trading webpage or phone 13 32 20 for further information.

Northern Territory
Download an application form from the Department of Justice website or phone (08) 8946 9530 for further information.

Queensland
Download the Application for registration of a business name form on the Queensland Office of Fair Trading website or phone a fair trading customer service representative on 13 13 04 for further information.

South Australia
Download an Application for Registration of a Business Name on the Office of Consumer and Business Affairs website and lodge either by mail, fax or in person. Please note a registration fee is applicable. For further information, phone 1300 138 918.

Tasmania
Download an application form from the Consumer Affairs and Fair Trading website and lodge it at any Service Tasmania shop. Please note an application fee is applicable. For further information, phone 1300 654 499.

Victoria
You can register your business name online, on the Consumer Affairs Victoria website or phone 1300 361 673 for further information. Check the Victorian Names Register to see whether another business has already registered a name similar to the name you want.

Western Australia
Register your business name on the Department of Commerce's Business names website. A registration fee is applicable. Phone 1300 304 014 if you need more information.

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