Is A Trademark The Same As A Business Name?

Category: Trademark Information

While a business name is often used as a brand or trademark, having business name registration does not give you ownership of that name. It is simply a government requirement so that people can find out who is behind a particular name, but does not give you brand ownership.

Imagine if you started using a new business name and six months later (or even years later), you received a letter from a competitor or a lawyer to say you had to change your name or be sued.

How would you feel about that? What would it cost you to rebrand?

My client, Janet*, learnt this the hard way … this is her story.

Janet had been using her brand, which was also her business name, for nearly 8 years.

She had worked hard to build her reputation and believed that her business name and brand were hers – particularly as she had been using it for so long. Business was looking good – more clients were referring business to her and she was becoming well known in her industry.

With her business growing, Janet was on top of the world!

Out of the blue, Janet received a letter from a lawyer instructing her to stop using the name, because his client had a trademark registration for that brand and Janet was infringing that client’s trademark rights.

A Trademark is Not The Same As A Business Name

At first Janet didn’t believe that this was right – she owned the business name, didn’t she? It was registered with the relevant government authority and had been for some time, so what was this all about?!

For Janet, receiving a letter like this was emotionally draining and took the focus off her main game of building her business.

The letter said that Janet basically had to stop using the brand as her business name, on her website, and on her marketing material – everywhere – otherwise she would be sued and lose the business that she built with her own blood, sweat and tears!
Janet told me that she had not taken this lying down. She had been fighting against the change for 6 months because she believed she had been doing the right thing and had many clients who knew her and her business.

6 months later, feeling drained and frustrated with the fight, she had finally decided she had had wasted enough time, money and energy (not to mention sleep!) and decided to rebrand and stop using her current name as the lawyers had requested.

Janet learnt the hard way that she could have avoided all this pain and heartache, if she organised for the right research to be done before starting her business. Having her brand trademarked at that stage would have meant that she owned it!

When Janet called me, although she was still emotionally attached to her old name, she had decided on a new name and wanted me to do the research to make sure the name was available for her to use, and then start the trademarking process as soon as possible.

One thing Janet knew for sure was that she didn’t want to end up in the same position again!
The good news for Janet is that her new name was unique enough to go smoothly through the registration process. Now she has peace of mind that she owns the brand and won’t end up in the same position down the track.

So the question of whether a trademark is the same as a business name, is an important one for business owners, and one that is often answered incorrectly.

It is possible, with many years of use, to gain what is called ‘common law rights’ in a name/brand if you have not taken steps to register it as a trademark.

The problem with that, is that proving those rights to stop a competitor from copying your brand can be incredibly expensive! It takes time and money to put together evidence of years of use and then provide that evidence in legal documents, etc.

Why would you rely on this process when it is so inexpensive to simply register the brand and own it?

The Benefits of Registering A Brand

If you register your brand, you won’t be sued for trademark infringement and risk losing your business – also, you can avoid business name or product name identity theft. Having a trademark registration gives you exclusive rights to use the name, so you can stop your competitors from copying you and trading on your reputation.

This really should be a no-brainer for a business owner that is spending thousands of dollars in setup costs and marketing!

TIP: As soon as you choose a name and before you do any marketing, web design, etc., get an Initial Protection Review and Strategy Report done so you know whether you can actually use and register the name as a trademark.