With the introduction of the National Business Name Register, does this mean I don’t need to register a trade mark in order to trade across state borders now?
The short answer: “Yes. You should still register your business name as a trade mark.”
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The long answer explains why.
Business names have always been, in my view, “Mickey Mouse” registration. The theory behind them is to allow consumers and other businesses to find out who is the real person/entity behind a trading name.
This is usually when you want to sue the business. Because a business name is not an entity by itself, you need to take action against the person or company that is trading under that business name.
As state borders have disappeared in the real world thanks to the internet (don’t get me started on how over-governed we are in this country!), state-based business name registrations have become ever more anachronistic, with the cost of registering in all states approaching $1,000.
The beauty of the new National Business Name Register is that a three-year registration now gives you a registration across the country for as little as $70 for three years. Finally, a tick for government.
But does this give you any rights or protection for your business name? The answer to that is a resounding NO!
A business name registration does not give you the right to use that name, or to stop other people from using it.
All it does is comply with state-based legislation, which requires a disclosure of who is operating under a business name.
The only way to secure a “proprietary interest” in a name that you are using [i.e. an ownership interest] is to register it as a trade mark.
This not only means that other people cannot stop you from using that name, it also allows you to assert your ownership rights in the name against someone else.
I hear some of you in reader-land saying that the act of using a business name builds up rights in it. Yes, that is true to an extent.
Using a business name will give you “common law” rights to that name, but if you want to sue someone else for using the same, or a similar name, you can only succeed if you can prove that you have built a reputation in the name, and suffered actual damage as a result of the other person using it.
This can be very a difficult and expensive exercise in court. These requirements do not have to be fulfilled if you have a trade mark registration.
So let me bang the drum again – you need to register your business name as a trade mark if you want to truly own it, and be able to protect it.