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Home - Start an Online Business - Guide to Setting Up an Internet Business - Your Identity
Your Business Identity: Trademarks, Company, Business and Domain Names
This information has been provided by Australian Patent Attorney Trevor Dredge

Overview   [top]
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   [top]
“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   [top]
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:

  1. generic Top-Level Domains (gTLDs) which include the .com, .net, .org domains, and

  2. 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   [top]
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    [top]
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   [top]
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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