I have a copycat competitor; does my business name give me any protection?

Dear Aunty B

When I started my consulting business a few years ago I registered my business name in my state, Victoria and New South Wales, and I registered a domain name. The business has done well and I have a few employees now.

But a colleague pointed out to me the other day that there is another business consultant drumming up business in my industry – provision of occupational health and safety advice – with a very similar name.

What can I do? Don’t I have rights to my name?

Sue,
Brisbane

Dear Sue,

Hello… haven’t you heard of trademarks?! There seems to be a crazy misconception out there that a business name is as good as a trademark. Well, I’m here to tell you that it isn’t.

A business name just gives you a right to trade in that state. It doesn’t give you any rights to stop others trading under a similar name or to take advantage of the goodwill you have built up in your name.

What you need is a registered trademark. It might not be too late. Get off to a lawyer straight away and file your trademark application for your business name. Hopefully the new outfit hasn’t beaten you to it. If it has your business name registration won’t help you – and you could be infringing its trademark!

Don’t worry too much about registering your logo or your corporate colours – that’s what big companies with intellectual property departments spend their time and dollars on. It is nice to register your logo, but it’s most important to get your business name in plain text registered.

That means it can’t be used by anybody else in your industry without your permission.

Without a registered trademark you can try to stop the other guys by arguing that they are breaching the Trade Practices Act by making false and misleading representations to customers using a name similar to yours – or that they are passing themselves off as you.

But neither are easy to prove.

Hopefully, you were smart in choosing your name Sue. To get a trademark registered it has to be distinctive, it’s hard to get a common name or geographic place registered. IP Australia has guidelines.

Your Aunty B.