Bill d’Apice
1 March 2010

Business names or trade marks- which has more legal weight?

Bill d’Apice


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The difference between a business name and trade mark may sometimes cause confusion for business traders and the public. You should be aware that there are a number of different registration mechanisms in Australia for names of organisations, each of which offer different advantages and have different requirements. As such, this can make it confusing in trying to understand what needs to be registered, when and for what purpose. Accordingly, we will simplify the difference between a business name and trade mark and under what type of registration a trading Church should operate. 

What is a business name?

A business name is a title under which a person or other legal entity may conduct its business. Business names are registered under the Business Names Act 2002 (in NSW, but there is similar legislation in each State and Territory in Australia), which is administered by the Office of Fair Trading (or its equivalent) in each State. The purpose of registering a business name is to simply provide a means of finding out the details of the proprietor of a trading entity where the entity is not trading under the proprietor’s name. For example, if John Smith owns a business in NSW, but is trading under ‘John Smith Patisserie’, then the registration of that name becomes compulsory with the NSW Office of Fair Trading.

Who owns a business name?

Beware that registering a business name does not give your entity ownership of that name. Registering a particular name will not stop another person or Church entity/agency from registering a similar name. For example, if a Church entity/agency registers the name ‘Australian Church’, there is nothing to stop another Church from registering the name ‘Church of Australia’.

A common misconception is that a name need only be registered as a business name. However, as mentioned above, a business name registration does not provide any proprietary rights to the name. Having a registered business name does not exclude the owner from infringing the rights of another trader. Instead, the onus is upon the owner of the business name to ensure that their use of a new business name does not infringe upon the rights of another trader.

If another trader does have existing rights to a particular business name (by virtue of a prior registered trade mark), they can legally force the new business owner to cancel the business name registration and change their name. Therefore, if a Church entity/agency wishes to trade under a business name without having to worry about infringing someone else’s rights, it may be wise to also register the business name as a trade mark.

What is a trade mark?

A trade mark may include any word, name, symbol, or design, or any combination used in business trading in order to identify and distinguish the goods and services of an entity from another. In short, a trade mark is effectively a brand name.

As mentioned above, the best way for a Church entity/agency to protect the registration of its business name is with a trade mark registration. A trade mark registration will provide the owner with the exclusive right to use that name throughout Australia and to prevent others from using a similar name in relation to the registered goods or services. Trade marks are also relevant for company names (which is different from a business name), company logos and domain names. Each of these serve to distinguish the entity from its competitors and each, therefore, function as trade marks. Trade mark registration is Australia wide, as opposed to a business name registration where it is limited to the state/territory only.

A final word

The bottom line is that if two separate Church entities/agencies have the same names registered, one as a business name and the other as a trade mark, the latter will effectively have priority and may sue the former for infringing its trade mark, if the business name owner uses the same name for goods or services similar to those covered by the trade mark owner.

You should note that trade mark law and procedure is vastly more complex compared with the law and procedure for business, company and domain name registration. There is a full legal process for trade mark registration, while other forms of name registration are largely an administrative process. A trade mark registration takes about 12 months or more, whereas for other types of name registration it can be done in as little as 5 minutes.  

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