Australian Business Names, Company Names and Trademarks

In Australia, a business name is the title or name through which an entity or a person conducts business. If you’re carrying out business or trade in Australia, a business name must be registered in the Australian Securities and Investments Commission (ASIC) Business Names Register.

There are, however, a number of exceptions. It’s possible to trade or conduct business in Australia without a business name if:
• You currently trade as an individual — In this case, your business name is your first and last name
• You are currently operating as an Australian registered company. In this case, your business name is your company name
• Your business is a partnership. In this case, your business name consists of all the names of current partners in your partnership

When registering your business name, you are responsible for ensuring that your business name is unique. Your business name cannot be identical or nearly identical to any business name that has already been registered.

There are also a number of rules that must be followed when registering a business name. These rules are outlined in the Business Names Registration Act 2011, with updated rules published within the Business Names Registration (Availability of Names) Determination 20151. It’s not possible to register business names that contain restricted or offensive words, or business names that infringe on registered trademarks.

It’s important to note that while registering a business name is a legal obligation, you are not guaranteed exclusive ownership over your business name. If you want to take steps to ensure that the intellectual property of your business such as naming or branding is secured, you will need to take additional steps, such as registering a trademark.

A company is a separate legal entity, registered with the ASIC. In Australia, a company is registered under its own name which typically must include “limited” or “proprietary limited” depending on how it is structured.

A company that wants to use a business name without “limited” or “proprietary limited” must also register the name they want to use as a business name separately. Company naming in Australia can be somewhat complex — for more information on incorporating and naming a company in Australia, see the Fullstack guide on How to Incorporate a Company in Australia.

Similarly, to registering a business name, registering a company name in Australia doesn’t provide any protection or proprietary rights over the name itself.

A trademark is used to protect your business name, ensuring that the identity of your business in the market is distinguished as unique. Trademarks can consist of phrases, words, combinations of letters or words or, in some cases, logos, pictures, unique packaging aspects, or even specific shapes.

The primarily rationale behind trademarks is consistency in delivery to the consumer. In a broad sense, a trademark ensures that consumers are able to immediately identify a particular brand, product, or service, and understand exactly what is being offered and who is responsible for its production and distribution.

Trademarks also prevent other parties from using the intellectual property of a company — in the case of this article, a business or company name.

Unlike business names and company names, registered trademarks provide the registrant with exclusive rights to use a trademark as a brand name. Trademark registrants are also able to take legal action against others for infringement. Registrants can let other parties use a trademark or sell a trademark. Once a trademark is registered, the registrant gains the right to place the trademark symbol ® next to their trademark, which is an important tool for intellectual property protection.

Before you set out to register a trademark, it’s important to perform an exhaustive search in order to ensure that the trademark you want to register is not already in use. In some cases, unregistered trademarks can be infringed under common law if they exist within the same category of goods or services you intend to register your trademark in, and have been in active use for a long time.

There are two methods that can be used to acquire a trademark in Australia:
1. Registration through IP Australia
   It’s possible to register a trademark through IP Australia. This method is the simplest, as it’s possible to register a trademark before you begin trading by referencing the trademark.
2. Registration through established reputation in the marketplace
   It’s possible to acquire a trademark by acquiring a reputation associated with a name, through a “common law” trademark. A business is able to acquire a common law trademark when the public identifies a specific trademark with it. The acquisition method is less common and more complex, and requires that businesses provide significant evidence of the use of a trademark over multiple years.

The most important distinction between Australian business names or company names and trademarks is that a business or company name does not give you ownership over a name. A trademark, however, can be used to protect your name and prevent it from being used by others.