Clearing up the differences between business names and trademarks
What you need to know (in a nutshell)
- Having a registered business name or company name does not give you any intellectual property rights in that name. To protect the name in the best possible way, it should be registered as a trademark.
- If you have a logo, it is important to ensure that you own the copyright. Even if you own the copyright, it is still recommended to register the logo as a trademark for broader protection and to reduce the risk of someone else using it for their business.
- A trademark is a badge of origin that distinguishes your business, goods, and/or services from others. It is not mandatory to register a trademark, but doing so gives you a monopoly over its use for the goods and services for which it is registered. The cost of registering a trademark varies, but it typically ranges around $3,000 for a standard application in two classes of goods and services.
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This article dispels some myths about business names and outlines contrasts between them and trademarks.
Do I Own the Name of My Business?
You have invested much time and energy in your business, even before it launches. Selecting an apt name/brand to operate under is a major part of this process. Branding is crucial for nearly all businesses and therefore safeguarding it is essential.
Registered my business name, so mine only? Not necessarily.
Holding a business or company name does not create any intellectual property rights in that name.
Business/corporate names registered in your state or territory cannot be duplicated. Moreover, any use of the name without registering it may not necessitate registration, and similarly named trading names can still be used even if deceptive.
Registering a business or corporate name is mandatory, not protective.
To secure a name, registering it as a trademark is advisable.
Logo?
If a logo is present, branding will typically be more striking than plain text.
If the graphics are unique, they likely have copyright protection. Do you own them? If not yourself, then steps must be taken swiftly - it is advisable to hold ownership. It depends upon what was agreed upon with your graphic designer.
Owning a copyright is not enough. However, registering your logo as a trademark gives you far greater protection and minimises the likelihood of accidental use by others.
What is a trademark and what does it cost?
A trademark is a sign that identifies one’s business, goods and/or services as distinct from those of others. Logos, slogans, trading names etc., and even sounds, colours or scents all qualify if used to signify origin.
Registering a trademark is not compulsory. Usually, it’s done to secure exclusive rights over the use of the trademark for certain goods and services. This creates an easily accessible legal record outlining when your statutory protections began as well as what they cover.
The cost depends on who registers it. It can be done independently, but to ensure correct goods and services are registered with the right options, employing a professional (IP Lawyer/trademark Attorney) is advised.
If you get help to file, there are usually fees to pay
- Fees for applications must be paid in advance to IPAustralia (the Australian trademark registry). IPAustralia’s registration fees must be paid no earlier than 7 months after filing the application.
- Legal or service fees for the trademark attorney assisting you.
Cost will depend on number of trademark classes and the trademark attorney you use, but typically a standard two-class goods/services registration would cost less than $3K.
No further payment is required for 10 years unless opposed. After the initial 10 years, the trademark can be renewed every decade by paying the renewal fee.
IPAustralia’s website makes the registration process easy to find and follow. Beforehand, it is vital to conduct thorough searches for chances of success in application and any possible repercussions arising from the use of a proposed trademark. These should be done by an experienced person as they are best placed on what needs searching and how.
Choosing classes and writing their descriptions can prove tricky. Consequently, it is prudent to seek assistance if you are not highly familiar with filing trademark applications.
Why Register a trademark?
Registering a trademark gives you greater security of rights than not registering does.
Without registering a trademark, it can be difficult to protect your business from another using the same or similar trademarks in ways that confuse customers. You may have no rights if you lack repute for an unregistered trademark and will struggle to prove a breach of legal rights such as passing off or fair trading regulations.
Registering a trademark prevents disagreements, as it is then evident what rights you have and when they began.
Registering one’s trademark has another benefit: the record becomes searchable, which prudent business owners will check to avoid infringing anyone’s rights. Without registration, their common law trademarks won’t show up on a public register and they may unwittingly use an identical or similar trademark.
Can I safeguard original services/products?
Original services/products can be protected, but not usually via trademarks.
Your products/services may be protected by one or more patents, copyrights, registered designs and non-disclosure agreements.
To safeguard any invention or intellectual property you have created, it is best to seek legal advice before offering it for sale. Otherwise, under certain circumstances, one may be precluded from protecting their rights.