Intellectual Property

What is Intellectual Property?

Intellectual Property represents the property of your mind or intellect. In business terms, this also means your proprietary knowledge.

Types of Intellectual Property:

  • patents for new or improved products or processes;

  • trade marks for letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these, to distinguish the goods and services of one trader from those of another;

  • designs for the shape or appearance of manufactured goods; and

  • copyright for original material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs.

Question

I would like to establish a business. I want to use a business name that I only can use for my business. I do not want any other businesses using my business name or a name that is too similar or deceptively similar to it. How would I go about protecting my business name?

Answer

The first step is to choose a business name that you like for your business and is a name that is not being used by any other business. At Lex Fori Lawyers we can check the national database to see if the name you would like to choose for your business is available.

Once you have picked the available business name, the second step is we can then register it with the Australian Securities and Investments Commission (ASIC).

Warning, it is important to be aware that the registration of a business name only with ASIC does not in itself provide you with any legal or proprietary rights over the name. For example, say someone uses a business name that is very similar or deceptively similar to your business name and is in the same line of business, you would not have any rights under legislation to take action against that person or business for copying as you have merely registered a business name, you do not own it. Only the registration and ownership of a trade mark can give you that legal protection.

A trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. It is used to distinguish the goods or services of one trader from those of other traders. Registration of a trade mark gives the registered owner exclusive use of the trade mark throughout Australia. As a registered trade mark owner you can sue a business owner for infringing your trade mark if the business name owner uses it on goods or services similar to those covered by the trade mark registration. A business that registers its business name as a trade mark has a much stronger legal right over a business that has merely registered its business name with ASIC.

Accordingly, the third and final step will be to register the business name as a trade mark. At Lex Fori Lawyers we can register a business name with IP Australia, which is the Commonwealth agency that administers registration under the Trade Marks Act 1995.

If you require legal advice on Intellectual Property or advice on any other area of law, please do not hesitate to contact us on (02) 9723 8793.