To find out more about this area of law, please see our legal questions and answers on this topic below, or click here to see our complete list of Legal Questions & Answers.


What happens if I am operating my business and then find out later that somebody else has trademarked words that I am using?
The owner of the trademark may be able to obtain an injunction to stop you from using the trademark words. This could mean that all of your advertising, printing and related marketing material will have been wasted and need to be destroyed. The owner of the trademark may ask you to provide an undertaking that you will stop using the trademarked words.

How do I protect my business name?
The best possible way to protect a business name is to register it as a trademark. A trademark gives the registered owner a monopoly over use of that name and may prevent others, in a particular class of goods and/or services, from using the name or a similar name.

What happens if there is a dispute between two people using the same or similar names?
Firstly you would need to check if the other name has been registered, when each name was registered, which party established a sufficient reputation in the name first, whether either of the names was registered as a trademark and what area of goods and/or services to which the name is being used for. If one of the owners is registered as a trademark they may be able to prevent the other from using the name or any other name that is 'deceptively similar'. If neither party has registered the name as a trade mark then other laws regulating reputation such as Passing Off and the Trade Practices Act (and its State equivalents) will come into play. These laws generally protect the person that was first to establish a 'sufficient reputation' in the name.

Does registering a business name or obtaining a Pty Ltd company mean that I can use that name and that I own that name?
Not necessarily. Registering a business name or setting up a company does not necessarily give you the ownership of the exclusive name that you have registered. Intellectual property rights are extremely complex and include copyright, trademarks, patents, passing off and misleading and deceptive conduct; S52 Trade Practices Act (Cth), S42 Fair Trading Act (NSW). To ensure that you are not infringing somebody else's intellectual property rights or to obtain exclusive use of a word or phrase in your industry you should address each of the legal issues we have referred to here. In particular you should check with IP Australia whether the words you want to use are already trademarked.