One question we’re often asked by clients is what is the difference between a business name, a company name and a trade mark? Another, is whether they should register a .com or .com.au domain.
We’re here to clear up any confusion, and to help you to determine what you need for your business, and how to go about obtaining registration.
First up is a company name. When you register a company, you’re required to choose a name for that entity. There are some restrictions on what name you can choose (for example, ASIC won’t register a company with a name that is identical to the name of a prior registered company, or a company name that uses certain restricted terms such as ‘police’, ‘royal’ or ‘university’), however ASIC does not check or confirm that the company name you have selected does not infringe on any registered trade marks. This means that even if you are able to register a company under a certain name through ASIC, the owner of a registered trade mark for that name may still take action against you for trade mark infringement.
For this reason, it’s important to also undertake a trade mark search prior to registration, to ensure that there are no potential limitations on your ability to trade under your desired company name.
A business name is not a company name. You are required to register a business name if you wish to carry on a business within Australia trading under a name that is not your personal name (if trading as a sole trader) or company name.
Unfortunately, registering a business name does not give you exclusive rights to trade under that name (or the ability to prevent others from using or registering that name), or provide you with any defence to trade mark infringement if someone else has a prior trade mark registration for that name.
Unlike a company name or a business name, a registered trade mark gives the owner the exclusive right to use the name as a trade mark in Australia for 10 years in relation to particular goods and services. Registered trade marks also help to provide:
- Value to your business. Registered trade marks create value for businesses. Registered trade marks can be licensed, assigned or sold and can significantly increase the value of your business on sale.
- Protection against infringement. Having a registered trade mark makes it quicker, easier and more cost effective to stop a third party from using an infringing mark in relation to the same goods and services.
- Certainty that you won’t infringe third party IP. Having a registered trade mark is a defence to an allegation that your trade mark infringes third party IP rights.
- Deterrence against infringement. Businesses developing an IP strategy and searching the IP Australia database of trade marks are unlikely to adopt a mark which is similar to a registered trade mark in relation to similar goods and services.
- Cooperation from third parties. Third parties (such a Google, Facebook and even Australian Customs) are much more likely to cooperate with owners of registered trade marks in relation to trade mark infringement.
Last but not least are domain names. When setting up a website for your business, you will need to decide on and register a domain name through an accredited registration organisation. You can find a list of accredited domain name registrars on the Australian Domain Name Administrator’s (auDA) website.
Before registering your domain, you should determine which types of domains (such as a .com or .com.au domain) are open to you, and which you would prefer to use.
In order to be eligible to apply for a .com.au domain name (known as a ‘country code Top Level Domain’ or ‘ccTLD’ for short):
- The applicant must be a ‘commercial entity’, (for example, a corporate entity or natural person issued with an ABN);
- You must have a presence in Australia. You can satisfy this requirement by being an Australian citizen, an Australian permanent resident visa holder or an entity issued with an ABN; and
- The domain name applied for must be:
- the same as or an acronym of your company, business or personal name, or a name of a partnership of which you are a partner, a trust of which you are a trustee, or a related body corporate;
- a match to your Australian trade mark; or
- a match to or a synonym of:
- the name of a service that you provide;
- goods that you sell (whether retail or wholesale);
- an event that you register or sponsor;
- an activity that you facilitate, teach or train; or
- a premises from which you operate.
While .com domains may be more desirable for businesses with a global presence, .com.au domains signify an Australian connection, can assist with directing traffic to your site from people located in Australia and may resonate more closely with your business’s Australian customers and clients.
We understand that trying to make the right decisions when starting a business can be confusing, so if you need any assistance registering a company, business name, trademark or domain, the KKI Commercial Team is here to help.