We’ll give you the short answer.

Yes. Here’s why …

  1. Trade marks and business names have different purposes.
    They protect your business in different ways.
  2. Registering a business name doesn’t give you proprietary rights.
    Only registering a trade mark through IP Australia will give you proprietary rights. This is particularly important if you intended to sell or licence your business name in future.
  3. A business name is not an automatic right to trade mark registration.
    If you register a business, company or even domain name for that matter, you do not automatically have the right to use that name as a trade mark. You need to go through the trade mark registration process to acquire those rights.
  4. It is more advantageous to take legal action if you have both.
    Your business will be in a better position to protect itself against illegal users if you register your business name as a trade mark. A business name alone does not give you legal rights to that name. This means that if someone else uses your business name for their business, it may be difficult to stop them trading. Therefore, it is best practice to also register your business name as a trade mark.
  5. It is illegal to use the R in circle symbol ® without trade mark registration.
    Using the ® symbol can be a powerful marketing tool that can evoke a sense of trust in a brand with consumers. Using this symbol on marketing material can add significant value to your brand. If your business doesn’t have a registered trade mark you might be missing out on this marketing opportunity.

So, what next?

If your business name is also your key branding, then the best way to protect it is by registering it as a trade mark though IP Australia. If you haven’t registered and you have a concern that someone else maybe using a similar mark don’t worry, it’s not too late. You can still bring an action in passing off or misleading and deceptive conduct to stop third party use of your business name and protect your business reputation, but it is far easier to enforce a registered trade mark. Therefore, my best practice advice is to get registered.

Parkston Lawyers has expertise in trade mark registration and all matters concerning business branding so please do not hesitate to contact us on info@parkstonlaw.com.au or (03) 9989 0912 if you have any questions.