31 May 2019

How to find out if someone is using your business name

Your business name is one of your most valuable assets. It's the main thing that differentiates you from your competitors, and consequently is an asset that needs to be protected. This article explains how to find out if someone else is using a name that is similar to (or the same as) your own.


1. Brainstorm a list of similar business names

The first place to start is obviously a search for your own name. However, a name that is similar to your name (but not identical) may not show up that search. It's therefore important that you expand your horizons.

For example, say you operate a construction business called 'Platinum Builders'. Your search should include names like ‘Platinum Building', 'Platinum Construction', 'Platinum Fitout', and so on.

Before you start searching, we suggest that you make a list of search terms. That way, you can make sure that you search for them all. And obviously you can add to this list after your search has begun.

2. Internet Searches

Once you have created your list, it's time to systematically check each name against a range of online sources. Because most businesses have an online presence of some kind, the internet is the best place to start.

The important thing is to be thorough.

For example, in Google, look beyond the first few pages of your search results. Remember that smaller companies may have a smaller internet presence and therefore be harder to find. Just because they don't appear on the first page of search results doesn't mean that they don't exist.

Also make sure you search social media channels, including Facebook, LinkedIn and Twitter. When checking internet domains, search for multiple domain extensions. For example, .com, .com.au, .co, .net, .net.au and so on. (Websites like auDA or TradingAs can be a useful starting point.)

We have prepared a checklist to help you search as many different services as possible to increase the quality of your search.

3. Trade Mark Search

Conducting a trade mark search takes seconds and is free. You can do it yourself, here. Trade mark searches are important for at least two reasons.

First, some businesses may have trade marks that are not easy to find elsewhere. An example would be a business that has registered a trade mark but has not started using the name yet. Some companies regularly monitor the trade marks register to specifically look for potential business name conflicts.

Second, it's important for you to make sure that you are not infringing someone else's trade mark. If you conduct a trade mark search and find that someone else is using your business name, this is an area where we suggest that you seek legal advice.

And if you haven't already registered a trade mark yourself, we suggest that you do so. It's relatively inexpensive and is an easy step you can take to help protect your brand. (See more on this below.)

4. ASIC and ABR Search

Unfortunately, the Australian Government does not have a single register that will allow you to conduct a business name search across all of its registers.

Also, the search algorithms within the Government's different databases work differently – which makes it even more important for you to conduct multiple searches in multiple places.  This is also why the internet and trade mark searches are so important.

For Government searches, we suggest that you check with both ASIC and the ABR, which you can do here and here.

The mere fact that your business name is registered will not necessarily prevent someone else from having that name registered. (But it may be enough for you to stop them from using it, if you are in competition.) 

5. Register your trade marks

If you need or want exclusive use of your name or logo and have not done so already, you should consider registering a trade mark (or trade marks) with IP Australia. You can read more about this here.

Trade mark protection provides you with different (and greater) protections than registration of a business name.  A trade mark provides you with the exclusive rights to commercially use, license or sell goods or services using the trade mark you have registered.  Upon registration, no one else in Australia is allowed to commercially use your trade mark for the same (or similar) goods and services.

Registering a trade mark also makes it more difficult for a competitor to trade under a similar name, and can make the process of enforcing your rights much simpler.

6. Concluding Tips

To help you start searching, we have created a companion checklist which you can access here. Again, be thorough and think laterally. And if you do find someone using a similar name to your own, we suggest that you speak to a lawyer. 

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About the Author

Morgan McIntosh | Associate

Morgan is a commercial lawyer whose practice is mainly focused on transactional matters in the construction space.


morgan.mcintosh@turtons.com | (02) 9229 2901

About Turtons

Turtons is a commercial law firm in Sydney with specialist expertise in privately owned construction and technology businesses.

Morgan McIntosh | Associate

Author

Morgan McIntosh | Associate

morgan.mcintosh@turtons.com

Morgan is a commercial lawyer whose practice is mainly focused on transactional matters in the construction space.


morgan.mcintosh@turtons.com | (02) 9229 2901

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