In our Small Business Management and Start-Up Course, we feature a module about protecting your intangible assets, which relates to your intellectual property rights, such as your right to use your business name.
Few people are aware of when they need to register their business name, and when they do not. So we’re going to clear this up quickly now: You do not need to register your business name if you’re using your own name, i.e. John Smith Consultant; or the name of you and your partner, i.e. J and A Smith, because that’s who you are.
When is a Business Name Registration Required?
However, if you wanted to register your business as Smith Financial Services, then you would need to register your business name. There is one exception to this rule, and that applies to online-only businesses – if you’re business is trading entirely online and there is no shop front, then you do not need to register your business name.
When you register your business name, you’ll do this with the fair trading department in your state, as there is no national department of fair-trading in Australia. So for instance, in New South Wales, you would register your business name with the Department of Fair Trading, but in Queensland it’s the Office of Fair Trading; in Victoria it’s Fair Trading and Consumer Affairs, and so forth.
However, just registering your business name with the Department of Fair Trading in New South Wales doesn’t stop someone in Western Australia from registering and using that business name, for example. So you need to find a way to stop people from using your business name.
Do You Have to be Big?
Most of the time when people think about the reasons they would want to stop someone using their business name, they think about large companies that want to protect their brand, and ultimately their revenues – for instance, Nike would have a vested interest in stopping someone in another country from registering and using the name ‘Nike’.
But you don’t need to be a large company. As Smith Financial Services operating in New South Wales, you could be a very reputable, hardworking company, but another Smith Financial Services in Queensland may not be.
Taking this further, what if a news outlet, like a newspaper or national television program, ran a story about the illegal activities going on at Smith Financial Services in Queensland – even though they’ve distinguished between your business and the Queensland business (and thus haven’t defamed your business)? Such a thing would certainly still have an adverse effect on your company.
Australia-Wide Registration or Trademark
This is where you would register a company, so you would become the Smith Financial Services Pty Ltd, which is Australia-wide and stops people from using your business name elsewhere.
Of course, that’s not to say that a person cannot register a business as Smith Financial Services Sydney or Smith Financial Services Perth, unless you trademark your name and logo. At the outset, this may seem like a lot of work and expense to go to, but this is where it’s worthwhile to think about where you see your business going in the future – remember: there are 42 different classes of trademarks!
Use a Professional
If you decide to go down this route, we recommend that you enlist the expertise of an intellectual property solicitor, as intellectual property law can be complicated, particularly if you’re trying to trademark logos or images or other subjective items.
You can also trademark your business in certain regions overseas, as long as they’re part of the Madrid Protocol, which is part of the World Intellectual Property Organization. Again, this is where it’s useful to think about the direction you intend to take your business in the future, as you may well find that there is someone using your business name overseas already.
If you’re thinking about structuring your business as a company, it’s wise to give some thought to the potential future direction of your business before you decide on a business name.
We cover intellectual property in a lot more detail in our Small Business Management and Start-Up course. For more information on the Small Business Management and Start-Up course, you can visit our website or contact our team.