Your Business Identity: Trademarks,
Company, Business and Domain Names
This
information has been provided by Australian Patent Attorney
Trevor Dredge
Overview
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A business must distinguish itself from others in the marketplace
through use of company and business names in trading, by using domain
names for an internet presence and trade marks for branding goods and
services. However, only registered trade marks and reputable
unregistered marks afford proprietary rights to a name. Business,
company and domain names do not. Whilst registering a business and/or
company and domain name for commercial and internet trading is
compulsory, it won’t secure your rights to that name.
Although you are presently not required to register a trade mark, it
will provide you with exclusive legal rights to use and control the use
of the trade mark in relation to the registered and related goods or
services, including the right to use it as a business, company or domain
name, and to stop others from doing the same, in the country(s) where
registration has been granted.
What is a Trade Mark
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“A
Trade
Mark
is a sign used, or intended to be used, to distinguish goods or
services dealt with or provided in the course of trade by a person from
goods or services so dealt with or provided by any other person”
[section17, Trade Marks Act 1995].
Thus a trade mark is a distinctive sign
representing a “badge of trade origin” of the goods or services to which
it is applied, and may also come to represent to the consumer a
particular image such as with Coca-Cola® “the original” and “the real
thing” or a recognition of a certain quality such as with Volvo® which
represents “safety in cars”. Importantly, trade marks enable consumers
to differentiate between goods and services of distinct origin. For the
owner a trade mark represents a competitive tool used to influence the
sale of their product or service whilst adding value to the company.
More Information on Trade Marks:
What is a Domain Name
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Every computer directly connected to the Internet is distinguished
by a unique identifying number called an Internet Protocol address “IP
address” . The IP address, comprising four
numbers (of up to three digits) separated by full stops, is used to
identify and locate a particular internet address.
Because IP addresses are neither personable nor easy to remember they
are associated with user-friendly alpha-numeric references known as
Domain Names. Domain names, such as intellpro.com.au, each consist of a
unique identifier part (i.e “intellpro”) coupled with an address
component (i.e. .com.au ). There are two categories of Top-Level
Domains:
-
generic Top-Level Domains (gTLDs)
which include the .com, .net, .org domains, and
-
country-code Top-Level Domains (ccTLDs)
incorporating two letter international standard country codes, such
as 'au' for Australia.
The principal registries for these
Top-Level Domains are INTERNIC and AUNIC respectively. Melbourne IT
trading as Internet Names World Wide (INWW), previously Internet
NamesAustralia (INA), has been delegated an administrator for com.au
domain name registrations.
Registration of a Domain Name
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The .com.au domain names can be registered through Internet Names
World Wide (INWW) on a “first come first served” basis. Because a domain
name is a unique identifier, unlike with trade marks where operators
existing in distinct markets can use the same trade mark provided
confusion does not result, no two organisations are able to own the same
domain name. Therefore an initial search must be conducted to determine
if the domain name is available for registration. Only an exact
alpha-numeric match will preclude registration (note: domain names are
not case sensitive).
Registration, is subject to a Domain Name Allocation Policy which
requires that the applicant have a company or business name
registration, as there is a requirement that the domain name derive
directly from, or at least represent an abbreviation of, the applicant’s
company or business name. Only one domain name will be licensed per
registered company and/or business name and overly represented names
including geographical designations and descriptive terms will not be
allowed.
Successful applicants are granted a renewable 2 year license. The
registrant’s rights to the domain name under the licence agreement are
non-assignable, and special requirements must be met to transfer to the
licencee.
Unlike trade marks, domain names do not
provide proprietary rights for the use of the name. Many people use
their domain name as if it were a Trade Mark, to distinguish their
'goods and services' from others. However, it may infringe an existing
trade mark of the same name owned by another business. Importantly, your
registration of a domain name does not provide a defence to infringement
of someone else's trade mark, and the onus will be on you to ensure
registration and use of a domain name does not contravene a third
party’s trade mark.
Business Name and Registration
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A business name is the name under which non-companies including sole
traders and partnerships trade. It is compulsory to register a business
name in every state and territory in which the business operates prior
to commencement of trading. An exception applies where the activities of
the business are conducted under the actual name of the person or
persons involved. Wherever a company conducts their business under a
name(s) distinct from the registered company name, a corresponding
business registration(s) in the appropriate State /Territory must be
registered.
The Australian State/Territory Business Registration Authorities are as
follows:
- State Business and Corporate
Affairs Office (SA)
- Registrar-General of Business
Names (ACT)
- Department of Consumer Affairs
(NSW)
- Office of Business Affairs (NT)
- Office of Consumer Affairs (QLD)
- Corporate Affairs Office (Tas)
- Office of Fair Trading and
Business Affairs and Business Name Registration Office (WA)
Registered Business names are issued
with an Australian Business Number. Registration or use of a business
name does not create a legal entity or entitle the business to
privileges afforded to a company. Unlike trade marks, business names do
not provide proprietary rights for the use of the trading name.
Company Name and Registration
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A company name is a trading name which creates a legal entity
with indication of the legal status and liability of that entity. This
company name must be displayed prominently at every place open to the
public at which the company carries on it’s business. Companies can only
conduct business in Australia when registered under the Corporations Law
with the Australian Securities and Investments Commission. (ASIC). The
ASIC maintains a searchable database of company and state business names
from which proprietor information can be obtained and the availability
of names determined.
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