Intellectual Property basics – Trademark of a business name

Separation Estate Planning

In today’s society the protection of a Company’s intellectual property is becoming more important by the day as companies strive for a competitive advantage in a crowded marketplace. Intellectual property can be a bit of a buzz word however and many people do not understand what intellectual property is and how it can be protected at law.

Intellectual property is essentially a product of your mind or intellect and can be an invention, a trade mark, an original design or the application of a good idea.

Your business’ intellectual property can be the key to it being successful, however this success will be limited if the intellectual property is freely available for everyone to access and use as they please. It is therefore important to have strategies in place within your business to protect your most valuable assets.

One of the most common pieces of intellectual property in a business will be their business name. A business name will often capture much of the goodwill of a business, as people will expect to be receiving a certain type and standard of product from a business with that name. It is therefore paramount to protect that goodwill from third party use.

The most common mistake we hear from established businesses is that they have a registered business name or a registered company name with ASIC and therefore their name is protected. Unfortunately, there is no intellectual property protection offered by a registered business name and therefore if a company was to come and register a trade mark over your registered business name you would have a difficult time in enforcing any intellectual property rights against the trade mark holder*.

It is our advice that a registered trade mark is a crucial element of protecting the goodwill of most businesses and is not confined to just a business name. A trade mark can be any of the following things:

  • letter
  • number
  • word
  • phrase
  • sound
  • smell
  • shape
  • logo
  • picture
  • any combination of the above

For example, a well-known trade mark that is not a business name belongs to Cadbury which holds a registered trade mark over the shade of the colour purple associated with its products. Although it does not own the rights to all use of that shade of purple, it does allow Cadbury to prevent competitors from using that particular shade of purple or a confusingly similar shade for the packaging of chocolate products.

A registered trademark should be carefully drafted to ensure that it meets legislative requirements and that it covers all categories of goods and services that are applicable to your business. A thorough search of competing trade marks and businesses should also be undertaken before registering a trade mark.

As trade marks are protected in time of registration priority, it is important to register your trade mark as soon as possible, ideally at the time you commence using the mark, so as to stop someone registering before you.

Trade marks registered in Australia only protect your mark in Australia. If you wish to register your trade mark in another country you must do so in that specific country and comply with any requirements they may have. There are certain countries which pursuant to international conventions will grant to you the same priority date as you have in Australia should the international trade mark application be entered within six months of submitting an application for the Australian Trade Mark.


*There are circumstances where you can enforce your trade mark without registration against a registered trade mark however this is a more difficult exercise than if you hold a registered trade mark.

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