The difference between a business name and a trade mark

Choosing your branding is one of the most important decisions you’ll make when starting a business.

There is a common misconception that registering your business name or registering a domain name gives you the same rights as a registered trade mark, but it does not! They serve different purposes and are used in different ways.

This article provides a guide on the difference between a business name and a trade mark and the best way to protect your branding.

Business names – what are they?

When you conduct a business, your customers have a right to be able to find out who is running the business. If you are using your own personal name to trade, that is fine – your customers know who you are. If you control a company, the company is a “legal person” and your customers know who is trading. If you trade under another label, customers cannot tell from the label who is running the business and so, if you trade under a name that is not a company name or your own personal name, you must register your trading name as a business name. Customers can then use the official register of business names to find out who is behind the label.

Any protection of your business name relies on your reputation.

Domain names – what are they?

A domain name is a mask that people use to describe the internet protocol (IP) address of the location on the internet where a customer can find the business’s website. An IP address is a string of numbers in the format It is quite difficult to create a memorable label just using a string of numbers and so there is an ability to register a word “mask” that can then attach to the string of numbers and customers can look for the words and not the numbers when looking for your business.

In an ideal world, and subject to a number of registration criteria about the types of high level domain names (.com, .net, you can register, your domain name should create a link between your business, products or services and your business website. This might mean registering your business name as a domain name or it might mean registering a trade mark as a domain name or it might be a memorable description of your operations. Whatever you choose, it should tie back to your business and reinforce your branding.

Any protection of your domain name relies on your reputation.

Trade marks – what are they?

A trade mark is a badge of origin of a product or service. A trade mark can be registered or unregistered – the significant difference is the way you can enforce any rights that you might have. A registered trade mark carries with it statutory rights (rights described at law) including rights to stop others from using a substantially identical or deceptively similar mark (registered or unregistered) in relation to identical or substantially similar goods and/or services. You do not need a significant reputation to bring an infringement action based on a registered trade mark. You will need a significant reputation in your trade mark to enforce an unregistered trade mark.

Trade marks are used to protect your business brand and specific product lines or services that are sold by your business. You might have one trade mark for your business brand and other trade marks that cover specific products or specific services that you offer.

Separate registration systems – separate rights

All three (business names, domain names and trade marks) have registration systems. The registration systems are separate from each other. Any rights gained by registering one can be lost to someone else with “better” rights (often earlier registration or stronger reputation) in one of the others.

You can gain a registration of a domain name and be prevented by a registered trade mark owned by another person from using the domain name you registered. The same with a business name – just because you have a registration does not mean you can use it freely. In some circumstances, an older business name will stop you registering a trade mark, or stop you using it as you want to, because of the reputation the other business has gained over time.

A trade mark registration is the strongest form of brand protection because it relies on statutory rights and not on reputation.

The most effective protection you can gain is to register your brand across all three registration systems – business name, domain name and trade mark. That way you can block out all others and it is harder to push you aside while you are developing your own reputation.

Planning ahead

When you are ready to start registering, it is a good idea to carry out some searches to check that all three (business name, domain name and trade mark) are available before you register anything. That way, if one of them is already taken, you can develop an informed strategy for moving forward. It might mean rethinking your branding. It might mean getting some advice about how strong your rights might be and whether you can take action to clear the way to your own registration.

Domain names can be searched through whois registers. Business names (and company names) can be searched through the register operated by the Australian Securities and Investments Commission (ASIC) and trade mark searches can be carried out through IP Australia.


Registering your business name or domain name does not provide you with the same benefits and protection that a trade mark registration does.

For the best protection, you need to develop a strategy to cover all registration options.

The area of intellectual property law can be complex so we recommend you speak with an experienced lawyer who can help you get everything right on the first go!

If you or someone you know wants more information or needs help or advice, please contact me on 0488 086 006 or email [email protected].