Who owns your business name: Biggest mistake made in relation to ownership of business names
O*NO! You’ve been using a business name for your agency but now someone else is using part of it or something similar. Did you know that having a business name registered is not proof that you ‘own’ that name? This blog is all about how you can protect your brand, business name and avoid getting into legal trouble.
What is a business name and how do you register it?
A business name refers to the name that your business operates under. To register a business name you must have an ABN aka Australian Business Number. An ABN is a unique identifier that allows your business to deal with government departments and agencies.
The business name will only be registered if it is available, meaning that it is not undesirable, does not use restricted words, and is not identical to a name registered to someone else. A name is undesirable if it is offensive, or implies a connection with an Australian, or foreign, government body. Restricted words relate to titles or expressions that can only be used with permission because they may mislead consumers about the type of business you are operating (eg. Using ‘incorporated’ or ‘bank’ when your business is not authorized to do so).
However, even after undertaking this process to successfully register your business name does not mean it is protected or that you can necessarily use it. For this reason, you need to trademark it. In fact, you can get into legal trouble for using a name someone else has already trademarked.
What is a trademark?
Trademarks help to protect one of your most important assets – your brand.
A mark includes a logo, your signage, a specific picture used, an aspect of packaging, a phrase, a word, letter, or number displayed in a particular style (eg. in a certain font and colour). However, there are certain marks that are more difficult to register. These include descriptive words and phrases on their own, especially if they are commonly used (eg. ‘Global’), geographical names, commonly used acronyms, and common surnames.
Your trademark will last for ten years from the date you file it. You are able to renew this trademark before it is set to expire. However, in Australia we have a ‘use it or lose it’ system, meaning, to maintain your trademark in this period you must actively be using it, otherwise it can be removed from the register. You are also required to register your trademark in one or more ‘class’. A class is category of goods or services for which you want your trademark to be protected. For example, you can prevent other people from using your business name or something similar in the real-estate industry specifically.
With a registered trademark you have the exclusive rights to use, license, and sell the mark. This also means that you can take legal action to stop others from using your mark, or one that is deceptively similar.
What do trademarks have to do with business names?
Registering a business name does not automatically give you a trademark in the name. You must register for a trademark separately to protect your rights in the business name. There are other ways you can challenge issues arising with your business name, however having a registered trademark makes the task considerably easier and successful. This is because, if you’re trademark is breached, you are given an immediate right to legal action. With a trademark registration of your business name and/or logo you can prevent other real-estate agencies from using a name that is similar to or mimic yours. This means that other businesses cannot benefit from your brand awareness and good reputation, especially as you’ve spent time and money building your brand.
On the other hand, you can also land yourself in legal trouble if you use a business name that is already trademarked by someone else. Therefore, it is always a good idea to search for existing trademarks before you start operating your business under a certain name or register it. You can search existing trademarks by searching on IP Australia or clicking here.
To complicate matters, Australia is a ‘first to use’ jurisdiction. ‘First to use’ means that even if someone has not registered their name as a trade mark, if they use it first then they could still try and block your registration of the mark or sue you for infringing on their rights. For this reason, it is very important to not only search to see if your name is available on IP Australia’s database, but also the business name register and Google.
Key Takeaways:
You must register the name you are operating your business under either as a trade mark, business name or company name, unless it is your own name.
Registering a business name does not give you complete ownership of it -to do this it must registered as a trademark.
A trademark can help protect your intellectual property rights in your brand – your business name, logo, and tagline.
With a registered trademark you have the exclusive rights to use, license, and sell the business name.
A registered trademark prevents another real-estate agency from using a business name that is identical or could be confused with yours. If they do, you have the right to take immediate legal action.
But remember, you must also check if your business name, whether trademarked or not, is similar to a business name already in use. If so, then it is you that could be facing legal action.
Your next steps
Who owns your business name? Take the first to protect your agency and brand with our team of real estate agency lawyers - book your FREE 10 minute call here to get started.
Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.