You’d been sitting on an awesome biz idea for longer than you’d like to admit. But finally, finally you gave yourself the loving kick in the arse that you needed to buckle down, believe in yourself and start making your idea a reality. The business name? Aces Aeronautics (you’re really super smart, in case you didn’t already know). It’s been epic!
You’ve been rolling along with your boss business plan. Your products. Your purpose and solution. Your branding. And you’ve registered your business name. Your business has started to take off (pun totally intended) when all of a sudden, you see an ad on Google for a business with your name – and it isn’t yours! Someone is using your business name. What do you do?
Once you’ve taken a moment to breathe, ask yourself: are they in your market? Or do they sell paper planes for kids made out of playing cards? It’s important to make sure your business name and reputation aren’t being impacted by another biz with the same name and take action (or not) accordingly.
Here’s the thing. Registering your business name actually isn’t enough to adequately protect it. It doesn’t give you exclusive rights over the name. If you want to really protect your business name (or logo... tagline… etc) you need to register it as a trade mark. But if you’ve found yourself in this pickle without a trade mark, there are options you can explore that may help you out of it.
Reach out to the other business
The first and simplest (though not always fun) option is to reach out to the other business to discuss your concerns. If you can’t come to an agreement (like them changing their name or offering more clarity to the public about their difference) and you need to take it further, you can:
Lodge a complaint
If you feel your business has much stronger ties to the name and is more established, you can lodge a complaint to the World Intellectual Property Organisation if you’re using .com and the like, or if you’re a .au biz, you can register your complaint with the Resolution Institute. From here, they do a deep dive into both businesses to see which one has better established their rights to the name.
For more information on disputes about similar business names, you can head on over to ASIC.
Take legal action
You also have the right to claim another business is “passing off” as your business or is “being misleading or deceptive in its conduct”, according to ASIC. If you feel as though this other business is trying to ride your coattails or make you look bad in any way, you can take action by sending a cease and desist letter. But here, you’ll have to prove your business had a solid reputation to begin with (that’s now being damaged), using items such as sales figures, publicity, interviews and the like.
Ultimately, you need to do everything you can to protect your business name before it gets to this point. It’s an ugly battle and not one you’re guaranteed to win. So do your due diligence and get legit!
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Riz McDonald is an e-commerce business owner, business coach, podcaster and a lawyer for over 16 years. She’s also a mum and a lover of good wine...she only ever drinks the cheap stuff when she’s stoney broke.
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This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.
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