Trade Mark or Business Name? What's the difference

Launching a business, and trying to work out the difference between business names and trade marks?

It can be A LOT to get your head around.

Don’t worry, we’ve got your back!

In this blog, we explain why business names and trade marks are not the same.

The key differences between business names and trade marks

In order to decide whether your brand needs a business name or trade mark, it is important that you understand why they differ.

Let’s dive in.

	Business name	Trade mark
What is it?	It is a name that you want your business to be known by.	A trade mark is a sign which distinguishes your business’ brand, goods and services from others on the market.  You can choose to trade mark a word, letter, number, logo, image, sound, shape, scent, or movement. Examples of trade marks include the Google logo and the words “American Express”.
Is it against the law not to register one?	Yes, if you intend to do business in Australia under a name that is not your own.	No. It’s a tactic that businesses use to protect their brand, goods and services.
Can I prevent a copycat from registering a similar one?	No. Unfortunately, registering a business name does not give you any exclusive rights over it.	Yes. Having a registered trade mark gives you absolute rights over the goods and services covered under it. So, if a copycat comes along and uses your trade mark without your permission, you can challenge or take legal action against them.
After it is registered, does it become an asset of my business?	No.	Yes. If you choose to sell, it could increase the value of your business and show potential buyers that you as a business owner do things properly.
Can I license it to other businesses?	No.	Yes. Imagine, if you will, that you own an Australian ingestible beauty collagen brand and want to franchise (i.e. market and distribute) your collagen supplements to franchisees (i.e. small business owners who have bought the rights to sell your products).  By licensing your trade mark, you can make your business passive income (i.e. franchisees will pay royalty and other fees to you) and increase your brand’s reputation while you’re at it. If you are after a licensing agreement, here's where you can find more information.
How much does it cost to register?	It’s $39 for one year and $92 for three years.	Fees to register a trade mark start at $250 but ultimately depend on the trade mark you propose to register. Click here for further details.
You’ve convinced me. How do I register one?	In Australia, business names are registered through the Australian Securities & Investments Commission. To register a business name, you can: use the Australian Government’s Business Registration Service if you don’t have an Australian Business Number (ABN). This service will allow you to register your business name and your ABN simultaneously. use the ASIC Connect portal if you already have ABN. engage a lawyer to do it for you if you’re time poor. The team at Foundd can help.	In Australia, trade marks are registered through IP Australia. The process is as follows: Ensure that you live in Australia or New Zealand (or have an agent who lives in either country), and plan to use your trade mark in relation to the goods or services listed in your trade mark application. Consider doing a course or engaging a lawyer to clue you in on trade mark registration so you can understand the ins and outs. (Trust us, a Google search won’t explain everything.) Search the IP Australia’s trade mark search database to ensure that the trade mark you propose to register is distinctive and one-of-a-kind. In other words, your trade mark CANNOT: already be used by another person or company. reference where your business is located. As an example, you cannot trade mark ‘Ipswich Sarongs’ if you have a sarong store in Ipswich, Queensland. describe the quality of the goods and services that your business offers. For instance, you cannot use a word like ‘excellent’. include names which are regularly used. Determine the kind of trade mark you want to apply for and the class(es) of goods and services it falls under. This can be a bit confusing so if you’re a bit bamboozled by it all, give us a hoy. Head to the IP Australia website and submit your trade mark application through the portal here. You’ll need to pay a filing fee (from $250) before you can lodge your application. Wait for an examiner to review your application. It can take three to six months. If it’s accepted, your trade mark will be registered and protected for ten years. However, if it’s not, you’ll need to comply with IP Australia’s directions. In our experience, this part of the process can be very stressful for clients so feel free to reach out if you need assistance.
How much does it cost to register a business name?	It’s $39 for one year and $92 for three years.	Fees to register a trade mark start at $250 but ultimately depend on the trade mark you propose to register. For further details, click here.

I have registered a trade mark and a copycat is using goods and services which fall under it. What can I do?

The best way to show a copycat that you are serious is to write and send them a cease-and-desist letter.

Your cease-and-desist letter should:

be dated at the top of the page;

set out that the copycat is using your trade mark without your permission;

provide a warning of what the consequences will be if they don’t stop (e.g. commencing legal action);

set out a clear timeframe (e.g. 14 days from the date of the letter) for them to stop using your trade mark;

be signed at the bottom of the page;

include any evidence of the copycat using your trade mark without permission. For instance, screenshots of products and services being advertised.

Ensure that you send the letter by registered post so you can track when the copycat receives it, get proof of mailing and obtain a signature on arrival. You may need to rely on these documents if you commence legal action.

Foundd Tip:

We have created an easy-to-complete cease-and-desist letter template which covers all of the above which you are welcome to use.

In summary

It is worth registering a business name and a trade mark to protect the business you are working so hard to create.

While both can seem like a huge investment to begin with, they are essential to establishing a viable business and will save you a lot of time, effort, and money in the long haul.

Need to chat about business names or trade marks? Our virtual door is always open.

***Disclaimer. Please read!!***

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.

Let’s dive in.

Foundd Tip:

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