By Michael Fetter

24 January 2017

When it comes to selling or buying a business, one of the first and most vital things to consider is choosing a name(s). The business name functions as a differentiating market factor, an important asset for the operation of the business. It encompasses a reputation and is a visual representation of your brand. If you fail to adequately protect your business name(s) and logos, you may be forced to change it. And you may risk losing more than just your business name(s).

Selecting a business name

The first step when selecting an appropriate name for your business is to consider originality. This will reduce the likelihood of encroaching upon the rights of another party. An original name will also make it easier to establish an identity for the business and simplify the trade mark registration process. The next step is to ensure that the business name is available. The Business Names Registration Act 2011 outlines the rules for registration of a business name and the circumstances under which a business name is available to an entity.

There are many other steps that all business owners need to undertake before committing to their business name, including: –
Conducting a business name search;
Undertaking a trade mark search of both registered and unregistered trade marks;
Investigating ABNs to display all entities which may have a similar name;
Executing a domain name search; and
Running social network website searches.
If you plan to conduct work overseas, you may need to extend your investigations to those countries in which you wish to trade.

If you or your lawyer have completed searches and found that someone else is already trading under the same or similar name, you may have to choose another name, or alternatively, conduct further investigations to determine the user of the name. Your lawyer can help you ascertain whether use of the proposed name is likely to infringe upon the rights of the other entity.

Protecting your business name
Registration of a business name does not grant you ownership of the name, nor does it give you the exclusive right to use the name. To adequately protect your business name, you should register it as a trade mark. The name and logo must be registered separately and simultaneously for optimal protection. The trade mark must be registered under a specific class of goods and services and it needs to be ensured that the trade mark is not likely to mislead, deceive or cause confusion to the general public. Trade marks can be registered in Australia and overseas. Whilst there is a cost, it helps to increase the value of your business as you own the Intellectual Property.
Domain names
Domain names, such as “.com.au” or “.org.au” are granted on a “first come, first served” basis. You are not automatically entitled to use your business name or trade mark as a domain name just because you have registered it.

If you believe someone is using your trade marked business name or logo, it is important to seek legal advice to discuss further protection of your business name and how to approach the infringing situation.

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