Registering a business name with ASIC lets you trade under that name, however it does not give you the right to stop anyone else from using it. Only a registered trade mark, under the Trade Marks Act 1995 (Cth) (Trade Marks Act), gives a business the exclusive right to a brand for its goods or services across Australia. Filing early is far cheaper than fixing the problem after a competitor forces it.

That single distinction catches out founders across the Gold Coast and Brisbane every year, usually after they have already spent real money on branding, packaging and marketing. By the time a competitor turns up using a similar name, the cheap and simple fix has often passed.

This piece covers what trade mark registration actually protects, why a business name and a domain are not enough, what it costs and how long it takes through IP Australia, and when a founder should file. The short version is that earlier is cheaper!

A business name is not a trade mark

A business name, a company name and a domain name each do a different job, and none of them protects your brand. A business name registered with ASIC only lets you trade under that name. A company name identifies your legal entity. A domain reserves a web address. None of the three gives you the exclusive right to stop someone else using a similar name in the market.

Someone else can register a similar business name, trade under a similar brand, or apply to register your name as a trade mark, and your ASIC registration will not stop them.

A registered trade mark is the only one of these that gives you exclusive rights to use the mark for your goods or services across Australia, under the Trade Marks Act. It is also the only one that entitles you to use the ® symbol and to take meaningful action against a competitor who copies your brand.

The trap is familiar: a founder builds a brand for two or three years on a registered business name and a matching domain, assumes the name is legally theirs, and only learns otherwise when a competitor starts using it or, worse, applies to register it first. That turns securing the brand into a costly and sometimes losing exercise.

What trade mark registration actually gives you

A registered trade mark gives a business four things: the exclusive right to use the mark for its registered goods and services anywhere in Australia, a simpler and cheaper basis for stopping copycats, a proprietary asset that can be licensed or sold, and something investors value and check in due diligence. One filing through IP Australia covers the entire country.

Exclusive national rights

A single registration through IP Australia covers the whole country, so a Gold Coast business is protected in Brisbane, Sydney and everywhere else from the one filing.

A cheaper, cleaner way to stop copycats

Enforcing a registered mark is far simpler than protecting an unregistered name. Without registration you are left arguing that you have built up a reputation and that the competitor is misleading customers, which is slow, expensive and uncertain. With a registration, the starting point is that the mark is yours.

An asset you can license or sell

A registered trade mark is property. It can sit on your balance sheet, be licensed to others for a royalty, and be sold or assigned when you exit.

Something investors and buyers check

In due diligence ahead of a raise or a sale, control of your core branding is one of the first things reviewed. Unprotected branding is treated as a risk, and it can reduce your valuation or hold up a deal.

The cost of waiting to register

Trade mark ownership in Australia turns partly on who first used the mark in trade, but relying on first use is a weak position. Registering a business name, company name or domain does not count as trade mark use. If a competitor files first, you are forced to prove earlier use to oppose them, which is expensive and uncertain, rather than simply holding your own registration.

Filing early avoids all of that. Your filing date sets your priority. The longer you wait, the more you have invested in a brand you may not be able to keep, and the higher the cost if you are forced to rebrand.

In the trade mark work Camber Law & Advisory handles, from filing and prosecuting applications to defending infringement claims and managing trade mark portfolios, the most expensive problems usually trace back to the same cause – a brand that was scaled before it was protected!

What it costs and how long it takes

Through IP Australia, government filing fees start at $250 per class for a standard online application using the picklist. Most small businesses need one or two classes. Registration takes a minimum of about seven months from filing. Once registered, protection lasts 10 years from the filing date and can be renewed every 10 years, with no limit on renewals.

Examination usually begins three to four months after filing. Because renewals are unlimited, a trade mark can in effect be protected indefinitely, which is why some brands have held their marks for over a century.

Two things are worth getting right before you file: choosing the correct classes for what you actually sell, and running a proper search so you are not applying for something already taken. Both are where founders most often go wrong on their own, and both are paid for in refiling fees and lost priority when they are wrong.

The decision

If you are building something you intend to keep, register the trade mark before you scale, not after a competitor forces the issue. Do not assume your business name, company name or domain protects your brand, because none of them does. Get the classes and the pre filing search right, since mistakes cost you in fees and lost priority.

If you are weighing up whether to register a trade mark, or you have had a letter from someone claiming your brand, Camber Law & Advisory can help you think it through. You can read more about the firm’s intellectual property work, or get in touch for a 30 minute consultation.

Frequently asked questions

Does registering my business name protect my brand?

No. An ASIC business name only lets you trade under that name. It does not give you exclusive rights or the ability to stop a competitor using a similar name. Only a registered trade mark under the Trade Marks Act 1995 (Cth) does that.

How much does it cost to register a trade mark in Australia?

Government filing fees through IP Australia start at $250 per class for a standard online application using the picklist. Most small businesses file in one or two classes. Professional help to choose classes and run a search adds to that, but usually costs far less than a later dispute or rebrand.

How long does trade mark registration take?

A minimum of about seven months from filing, assuming no objections or oppositions. Examination usually begins three to four months in. If IP Australia raises an issue, or a third party opposes the application, it takes longer.

How long does a registered trade mark last?

Ten years from the filing date. It can be renewed every 10 years with no limit on the number of renewals, so a mark can be kept indefinitely as long as renewals are paid and the mark stays in use.