Understanding the difference between a Trade Mark, a Business name and a Company
Should you register a Trade Mark with IP Australia for the purpose of protecting your brand in the Australian marketplace?
To be able to properly consider this question, it is important to understand the difference between a Trade Mark, a Business Name and a Company. The difference between the three is as follows:
A Trade Mark is a recognisable logo, sign, design, symbol, word and/or phrase (or a combination of these) that identifies the source of origin of particular goods and/or services. The purpose of a Trade Mark is to distinguish the goods and/or services supplied by your business from the goods and/or services supplied by competing businesses.
Ownership of a Trade Mark can be established in the following ways:
By registering the Trade Mark with IP Australia. This is clearly the preferable way of establishing ownership of your Trade Mark.
Alternatively, ownership of a Trade Mark can also be established at common law by demonstrating that your business has used its Trade Mark in the Australian marketplace. This is the less preferable way of establishing ownership, because ultimately whether a business is able to demonstrate use in the Australian marketplace is a question of evidence.
A Business Nameis a name or title under which a person or company conducts its business.
A Business Name does not have to be the same as the name of the people and/or entity that actually own and operate the Business.
A Business Name is not a legal entity - unlike, for example, a Company.
A Business Name is registered on the Australian Business Register. Registration of a Business Name has the effect that your Business Name is reserved for your business.
A Companyis a separate legal entity which individuals form to engage in business. As a Company is a separate legal entity, which means that it is capable of suing and being sued in its own name (as opposed to in the names of the individuals who have formed it).
The Directors engage in the day-to-day management of the Company.
A Company is owned by it’s Shareholders. Shareholders of the Company also have the right to vote on certain matters that effect the Company.
It is also important to be aware that a Business Name and a Company do not protect the logo, sign, design, symbol, word and/or phrase (or a combination of these) which your business uses to market its goods and/or services in the Australian marketplace. Only a Trade Mark will give you this protection.
Do you require assistance in registering a Trade Mark? Please do not hesitate to contact RNG Lawyers on (03) 9739 7377 or submit an enquiry form below.