All business names registered pre-2012 were transferred to, and merged with, the national business names register, irrespective of such business name’s originating state of registration.
What’s a trade mark?
A trade mark provides you with ownership rights (i.e. a proprietary interest) in the words or images that have been registered with IP Australia (those that you have been using whilst carrying on business in Australia). Accordingly, a trade mark gives you the ability to stop others using your name as (unlike a business name) registration of a trade mark gives you intellectual ownership rights in the words or images that have been registered.
How can I protect my business’ brand without a trade mark?
The key mechanisms include:
This remedy stops another party from using your registered business name in a manner as to mislead or deceive people into thinking their business is your business (i.e. infringing your business name). In such cases, you may have grounds to institute proceedings against the infringing party, however this is an expensive and complicated exercise.
Where a business has been operating under a specific name (having generated notable goodwill) and another business attempts to register that name as a trade mark (or a trade mark substantially similar to that name), the earlier business may oppose the registration of the new business’ trade mark (irrespective of the fact they have not registered a trade mark).
However, in the event you had registered a trade mark, you would have easier and (more) inexpensive access to stopping others from leveraging from your business’ goodwill and intellectual property.
The gist of it
Don’t wait until your rights are infringed, register a trade mark from the outset of your business for legal protection.
Registration of a business name does not give you any ownership rights over the business name.
Registration of a trade mark provides you with access to easier and more cost-effective legal avenues to commercially protect your business and its brand.
“Passing Off” and other remedies may be used to stop others from using your registered business name, but such remedies are expensive and complicated, and would be avoided by registering a trade mark.