Starting a Business: Trade marks, company names, and domains

Your business name can develop to become one of your most valuable assets, through marketing and the development of a relationship between the public and your brand.  This is why it is important to protect your name from misappropriation.  When you start a business you might naturally be aware of the need to clear the company name with companies house, and if you intend to develop an online presence you may also check the availability of domain names for your brand, but too often businesses are not aware of the importance of trade mark registration.

Differences between Company names, Domain names, and Trade Marks

Registration of your company name, and your domain name do not offer the level of protection necessary to prevent other businesses from using your brand names and logos in connection with competing products or services.  Also if someone else has trade mark rights over the name, then your company or domain registrations can be cancelled.  To properly protect your brand it is necessary to search the trade mark registers, and if the name is available to you to register, then apply to secure a trade mark.

Unregistered Trade Marks and Passing Off

Since 1994 unregistered trade marks are not afforded protection under the Trade Marks Act.  So, if you want to stop someone using your unregistered brands, you can only do so through a different type of legal action called ‘passing off’.  This action arises out of the common law, and its success involves proof of damage to your reputation, and confusion by members of the public, among other things.  This type of legal action can be extremely expensive, and is difficult to establish.

It is important therefore to register a trade mark, and to do so before you begin to use a name for your business.  As part of the process you will discover whether someone else has rights over a similar name, allowing you to make a change if necessary, rather than trading with a name that you cannot own, and that you may later be prevented from using.  If the name is available, then it is advisable to register and thereby secure the necessary ownership rights straight away.  If you instead delay registration, waiting to see if your venture succeeds, you may find yourself unable to secure.  This could happen if someone else, in the meantime, registers a trade mark which prevents your registration succeeding.

Protecting the Goodwill in your Brand

So, trade marks are an investment in the future success of your business.  The more established and well known your brand becomes, the more likely others are to piggy back on your brand success.  Goodwill in your business name is built up through substantial investment and marketing, and to avoid wasting this investment it is crucial that you check the availability of the trade mark beforehand.

A proactive strategy for protecting your brand will save business funds in the long run, providing a powerful tool to dissuade imitators and counterfeiters, and to take action to enforce your rights when necessary.