Business names, company names, trademarks and domain names – what is the difference?

The goodwill of a business may be its greatest asset, and is often based on its name. So, protecting that name is of vital importance. There are various ways of registering a name which are all legally different, and give different levels of protection.

Company names

Every company must have a name, and an Australian Company Number (ACN) and most have a unique Australian Business Number (ABN). The law requires that the ACN or ABN must appear on almost all company documents, though this requirement is often ignored.

Because each company has a unique ACN or ABN, companies can be registered with almost identical names. The law takes the view that any confusion will be avoided by the fact that they each have different ACNs or ABNs which appear on all of the company’s invoices and other documents, at least in theory.

For this reason, if you run a business through a company, anyone else can register an almost identical company name. Accordingly, registering a company name gives very little protection for that name.

Business names

The law requires that every business must have a registered business name, unless the business is carried on in the name of a company, or the name of an individual. While most businesses have an ABN, there is no legal requirement for the ABN to appear on the company’s documents, apart from tax invoices and other tax related documents.

For this reason, a business name cannot be registered if it would be confusingly similar to another registered business name. This gives the holder of a business name comfort that no one else will register another business name which could undermine the goodwill of their name. Thus, a business name gives more protection for the goodwill than a company name.

Trademarks

A registered trademark is the strongest protection you can have for your name or logo. It prevents anyone else from providing similar goods or services under the same or similar name or logo anywhere in Australia, and can even be extended internationally. Unlike a company name or a business name, a registered trademark is an item of property, and can be sold. Having a registered trademark often adds to the value of a business.

The process of registering a trademark is far more complicated than a business name. The main requirement is that the trademark must be unique. For example, you cannot register the trademark “Car Wash” then demand that every other car wash cease to use that name.

We can advise you as to whether your trademark can be registered and, if so, we can take care of the registration process for you.

Domain names

Domain names are extremely important to many businesses and constitute a substantial part of the value of their goodwill.

However, the law has fallen far behind the rapid development of the Internet, so the registration of domain names is not covered by any legislation. Rather, it is covered by a series of contractual relationships between domain name registrants.

If someone registers a domain name which is deceptively similar to your company name, business name or trademark, you can make application to the relevant registration authority to cancel the offending URL. For Australian domain names, these complaints are handled by auDA. It is a private organisation, though with the power to cancel the registration of domain names ending in .au.

We can handle the dispute procedure for you if required.

Passing off and deceptive conduct

Apart from the protection of your goodwill through the registration of names, trademarks and domain names referred to above you can take legal proceedings if another organisation tries to take advantage of your goodwill by passing themselves off has been associated with your business. In those circumstances, you can seek an injunction to prevent them from doing so, or claim damages for any money you lose as a result.

Conclusion

Much of the value of the business is often tied up in its name. Often, the name has less protection than you realise. If you require any assistance in registering a business name or trademark, or in disputing any attempt to take advantage of the name of your business, our specialists can advise and assist you.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9923 2321, email enquiries@somervillelegal.com.au or contact Tim Somerville  or Andrew Somerville.