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The difference between a Business Name and a Trade Mark

We often have people ask us what the difference is between a business name and a trade mark. It is important before registering either that you understand the difference as this will determine whether you need to register for one or the other, or both.

Trade mark, Intellectual Property, Copyright, Grauf O'brien Lawyers, IP, protection

A business name is one which you use to identify a business, if you do not wish to use your own name. It does not identify a product or service. It must be registered with the Australian Securities & Investments Commission (ASIC) National Business Names Register. The legal entity that owns the business, which can be a person (sole trader), multiple people (partnership) or a company, uses the registered business name to promote the business. This could be ABC Pty Ltd trading as XYZ Services. For more information on which business structure is right for you, please see our blog titled “Business Structure Basics – Know the Terminology”.

A trade mark is used to identify and differentiate products and services. You do not have to register a trade mark; however, it is sensible to do so as it is then protected by the Trade Marks Act 1995 (Cth). An unregistered trade mark is only protected by general law. For this reason, we are of the view that registering your trade mark is essential to protect your interests. When registering a trade mark, you must indicate which class of goods or services the trade mark relates to. The different classes are defined here. For example to trade mark our logo we are under class 45 as we provide legal services. The following can be trademarked:

- Normal or made-up word

- Phrase

- Letters or Numerals

- Name

- Shape or colour

- Sound or smell

- Movement

We recommend engaging the services of a IP Attorney, and Grauf O’Brien Lawyers can refer you to an appropriately qualified expert.

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