Business Names and Trademarks: Why the Difference Matters
- Olivia Gebron
- 1 day ago
- 3 min read
Many Australian business owners believe that registering a business name automatically gives them ownership or exclusive rights over that name. Unfortunately, this is a widespread misconception.
Registering a business name with the Australian Securities and Investments Commission (ASIC) is a compliance requirement, not a form of intellectual property (IP) protection. It allows business owners to trade under a name, but it does not grant ownership or exclusivity over that name.
A trademark, by contrast, provides enforceable legal rights to use and protect a name, logo, or slogan under the Trade Marks Act 1995 (Cth).
What Registering a Business Name Really Means
Under section 18 of the Business Names Registration Act 2011 (Cth), it is an offence to carry on business under an unregistered name. Registration ensures transparency by showing who operates behind a business name, whether an individual, company, or partnership.
However, ASIC registration:
Does not provide ownership of the name;
Does not stop others from using similar names; and
Does not offer legal protection against competitors.
In short, business name registration is an administrative requirement, not brand protection. Another party can still register your name as a trademark and stop you from using it.
Why Trademark Registration Protects Your Brand
Registering a trademark with IP Australia gives business owners exclusive rights to use, license, and enforce their mark throughout Australia, pursuant to the terms of the registration.
Key benefits include:
Exclusive Ownership: You alone can use the mark for the registered goods or services.
National Protection: Legal coverage across all Australian states and territories.
Right to Enforce: You can take action for infringement under sections 120 - 122 of the Trade Marks Act 1995 (Cth).
Asset Creation: Your trademark becomes a valuable business asset that can be licensed, sold, or franchised.
Brand Authority: A registered mark boosts your professional credibility and market value.
Common Misunderstanding: “I registered my business name, so I am safe”
This is a common misunderstanding and leads to one of the most common mistakes made by business owners. In reality, ASIC registration of a business name provides no defence under trademark law.
Example:A café registers “Urban Bean” as a business name but never trademarks it. Later, another company registers “Urban Bean Coffee Co.” as a trademark for hospitality services. The café owner may then be legally required to stop using the name and rebrand, despite using that name first.
Government Guidance: ASIC vs IP Australia
Both ASIC and IP Australia provide separate, complementary systems:
ASIC’s Business Names Register: identifies who runs a business.
IP Australia’s Trade Marks Register: protects what distinguishes your business from others.
To secure both compliance and protection, businesses should register their names under both systems.
How to Protect Your Brand in Australia
Follow these steps to ensure full brand protection:
Search IP Australia’s Trade Marks Register before choosing a new business name.
Register your business name with ASIC to meet legal obligations.
Apply for trademark registration through IP Australia.
Monitor your trademark to prevent misuse or infringement.
Seek legal advice before launching new products, brands, or campaigns.
The Bottom Line: Compliance Is Not Protection
Registering a business name satisfies legal trading requirements but does not protect your brand identity. Without a registered trademark, you risk imitation, confusion, and potential rebranding costs.
At BlackBay Lawyers, we help Australian businesses identify, register, and protect their intellectual property. Whether you are starting out or scaling nationally, our team ensures your brand is secure under Australian law.
The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.
The solicitors at BlackBay Lawyers can provide specialised and detailed advice for business owners. If you require advice, please feel free to contact BlackBay Lawyers on (02) 8005 3077 or via www.blackbaylawyers.com.au for a
confidential discussion with one of our solicitors.
ABOUT THE AUTHOR
Olivia Gebron, is an associate and an enthusiastic, committed member of our team. With a genuine passion for helping clients navigate complex legal disputes, she brings a clear and strategic mindset to every matter. Olivia takes pride in understanding each client’s unique circumstances, allowing her to deliver tailored solutions with confidence and clarity.
