Do I need to trademark my business name if it's registered with ASIC?

Do I need to trademark my business name if it's registered with ASIC?

So, you’ve registered your business name or company name with ASIC. That’s all you’ve gotta do to protect your precious biz name, right? Well… not quite. Here’s the lowdown on why trademark name registration is an essential step in protecting your business’ intellectual property.

What is a trademark?

Here’s the 411. 

A trademark gives you legal rights of a name, phrase, logo or other distinguishing element (like colour, or even smell) that’s related to your business, brand, products or services. 

It’s the primary way to protect these elements against copycats using them for their own gain (whether intentionally or unintentionally).

Trademarks are your first line of defence against others using your business name – or something deceptively similar – in their own business. They serve to protect the hard yards you’ve invested in your biz, and prevent people from swooping in and stealing it for themselves. And if they try? Repercussions abound!

Psst… Wondering how to get a trademark for a business name? Here’s the lowdown.

What happens if I don’t register a trademark for my business name?

Picture this: A few years ago, you quit your soul-destroying job to start your own business. You painstakingly researched and brainstormed what name to bestow upon it. And chose one you love (yaaas). You perfected your ability to juggle 387 client tasks at the same time. You invested a shite tonne into your branding. Your website. Your social media. And you managed to maintain your sanity (well done, you!).

Fast-forward to today. Biz life is good… until a client reaches out to let you know that they’ve come across someone who’s caught you in their copycat scheme. Their biz offers the same services. They have the same ideal client. And they’ve even copied your brand colours! 

You come to us (understandably) ticked off and we say that without a registered trade mark, you need to prove to us why your business name is uniquely yours. Meanwhile, that sly devil is clowning around making money out of your brainchild!

Without a registered trademark for your business name, you:

  • Could experience a compromised reputation
  • Are likely to incur a whole lotta dollars in legal fees
  • Will struggle to hold the copycat accountable for their actions
  • Might miss out on clients because they think your copycat is you (yikes!)

What’s the good news if I do register a trademark for my business name?

In this scenario, if you had a registered trademark? You’d be able to easy-peasy-lemon-squeezy send your copycat a Cease and Desist letter, explaining that – ahem – you own the exclusive rights in that name, actually. And they’re infringing on those rights by using your trademark for their own ends without your permission. 

Which is, obviously, against the law.

If they aren’t scared off by your legally legit Cease and Desist letter (in our experience, once a copycat realises you have a registered trademark, 99% of them take the requested action), you have the right to enter into legal proceedings. Read: Sue the pants off them!

If I need a trademark to protect my business, why should I register my business name in the first place?

Think of business name registration as twofold: your first step is registering your business name, and your (immediate, if possible) next step is registering a trademark for your business name.

According to Business.gov.au, “a registered business name does not give you exclusive rights to the name. If you want to have exclusive rights and stop others using your business name, you must apply for a trade mark.”

So should you bother?

Long story short: hell yes. 

In fact, it’s a legal necessity to register your business name. 

According to ASIC, “having an unregistered business name is a breach of the Business Names Registrations Act”

Why registering your business name as a trademark is a necessity

It’s not just in the above situation that you might find yourself in hot water if you don’t register your business name as a trademark. Yep… it gets worse.

Think about what might happen if you don’t bother getting a trademark for your business name – and your copycat beats you to the punch.

When assessing a trademark application, IP Australia doesn’t check the business name register. 

They only review the trademark register. Meaning if they don’t find something the same or similar? Your copycat has free rein to trademark your name as if it’s theirs. 

Then, you run the risk of them chasing after you, accusing you of infringing upon their rights! What. A. Mess.

Several bottles of champagne in a branded bucket of ice

If you own a business, trademarking your business name is an important step in protecting your brand. And if you’re a Champagne brand, you should definitely get in touch with us, if you know what I mean ;)

 Take it from us, registering a business or company name will NOT:

  • give you exclusive rights to use your words, names, slogans, movements, colours, sound, images, symbols, shapes, scents, packaging or signatures
  • stop others from stealing your name or using a similar one to slap on their goods and services because they are lazy
  • stop you from being sued by others who say you are using their words, names, slogans, movements, colours, sound, images, symbols, shapes, scents, packaging or signatures.

When should I trademark my business name?

Ideally, you’ll trademark your business name on day one! 

But, we get that #startuplife budget, so once its financially viable to invest, it’s go-time baby.  

Some other times that signify it’d be a good time to register a trademark for your business name include:

  • You’re hiring a team of contractors or employees 
  • Your business (and reputation!) is experiencing growth
  • You’ve launched a course or a suite of digital products
  • You’re printing your business name on apparel to wear or sell

Just think: How awful it would be to have to start all over again because you were swindled by a copycat and didn’t have a registered trademark to protect your brand. It makes no sense to pour your blood, sweat, tears and money into building your brand and getting an online presence only to start again because you did not protect your business with a trade mark. Your business is valuable. Protect it. You won’t regret it.  You’ll only regret not doing this sooner!

It’s time to trademark your business name!

Still confused about registering a trade mark? No worries, brilliant creative. Book in a consult with a trusted legal friend (us, duh!). 

We’ll walk you through the entire trademark registration process and can even register your trademark for you. 

Riz Amin is Foundd Legal’s founder and a lawyer of over 20 years. When she’s not nose-deep in contracts (or a good glass of red), she’s chasing after her two kiddos or two fluffballs.

** Disclaimer: This article is for general information purposes only, and does not constitute legal or other professional advice. **


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