That’s my Name!

A common misconception in the commercial world is that registering a business name (as required by law) grants you the right to its exclusive use. From a legal perspective this is far from the case. Whilst registration of your business name with ASIC prevents other parties from registering an identical business name, it does not stop other parties from using your business name. Essentially, you do not have any legal rights to tell another entity to cease and desist from using that name.

Similarly, many business owners operate a website, the website URL address is referred to as a domain name. A business’ domain name is often the relevant business name or a variant thereof (.com, .com.au, .org.au etc). As with a business name, the registration of your domain name, only prevents other parties from registering it (as opposed to using it).

In the current marketplace, a domain name or business name registration does not grant you the exclusive use of the specific words. The rights to exclusive use are only afforded to you by a trade mark registration.

Whilst there is some provision through the Australian Consumer Law to exert unregistered trade mark rights of a business name, it is often difficult and expensive to pursue these avenues and may provide only limited relief. A successful claim under common law rights generally requires extensive evidence of your reputation in the marketplace to assert any such claim.

The double edged sword of not registering your business name as a trade mark, exposes a vulnerability to your business that another party may (in good faith) register your business name or domain name as a trade mark and subsequently be able to enforce their trade mark rights to its exclusive use.

In a world of greys, what ifs; and maybes, it would be useful to know you have one thing to rely on, your place in the market with a trade mark registration.