SELECTING, REGISTERING AND

PROTECTING A NAME

The importance of a name

• Band and artist names are in fact brand names

The importance of a name

• Can you guess what your most important asset is? Apart from your good looks, charm and talent…?

• Your most important asset is the group name (Passman)

• Your fans will buy tickets, records and merchandise on the strength of, and belief in, your name.’ (Simpson)

Who needs a business name?• If you are carrying on a business as a company, partnership,

trust or NFP, or a sole trader using any name other than your own name, you will need to register a business name.

• Sole traders using their own name do not register

• If you are trading under anything other than own name, consider registering a business name.

Problems relating to using own name:• Can’t open business bank accounts• Problems with tax and accounting• May be viewed as less professional

Selecting a business name

• Try it out on other people

• Find a name that people will associate with you, your music, your business - you must establish your own identity.

• Come up with three or four business name ideas that you would be happy with- someone may already have your 1st choice.

The name search

1 Internet search.

2 Australasian Music Industry Directory.

3 White and Yellow Pages Online.

4 The National Names Index (NNI) – At ASIC website. Registered business details

5 IP Australia – Trade marks

• Remember, though, that you don’t actually own the name.

• You must establish a reputation and ‘goodwill’ by using it.

• Registering the name is just a way to protect that reputation or goodwill.

• It doesn’t matter who came up with the name 1st; it is a question of who has established the greater reputation.

• ‘passing off’ occurs when a person falsely represents or suggests that they (or their goods or services) are those of another —using someone else’s reputation

• Passing off is prohibited by law.

Names to avoid• Name must be original and… must not be…

• Misleading

• Offensive

• imply a connection with government

• imply a connection with royalty

• require government approval (‘University’ or ‘Building Society’).

Selecting a business name

• Bear in mind that you may want to sell the business one day.

• Check the spelling - once it is registered you will have to keep it

Registering a business name

• Sole traders, partnerships, co-ops, and incorporated and unincorporated associations are all state-based organisations.

• Register these types of businesses with your state’s consumer affairs or fair trading department or body.

Registering a business name

• Companies and trusts are nationally based organisations.

• These business names and details must be registered with ASIC.

Why register a business name?

• Registering your business name with the relevant state department ensures that nobody else can register that name in that territory.

• It is essentially a bureaucratic function that allows consumers and other businesses to find out the people or companies behind each business name.

• Does not give you any rights of ownership over the name.

Why register a business name?

• The most important thing that registering a business name allows you to do is open a bank account in the name of the business.

• Enables you to:

• Send and receive cheques in the business name• Keep your finances separate• Place your business name and Business Registration

Number (BRN) on your letterhead, statements and invoices.

Costs of registering a business name

• initial registration: $70–150 for the first year

• ongoing costs: $50–100 each year to stay registered.

• Refer to page 49 of the text for your state based organisation.

National-level registration

• Companies and trusts have a more complicated system of registration.

• You are not only registering the name, but also registering other information about the business at the same time.

• details about - company directors, internal company structure and shareholdings, ‘replicable rules’, or the company constitution.

National-level registration• From July 1998 it became possible for private companies to

be registered with only one person.

• Company must have at least 1 member and 1 director, but they can be the same person.

• Private company can’t have more than 50 non-employee shareholders

National-level registrationCompany names will generally contain one of the following abbreviations:

• Use a lawyer or accountant to help set-up

• Using a ‘shelf’ company may be a bit quicker and cheaper

Australian Company Number

• ACN is used in much the same way as the BRN

• Must appear on all official company docs and on letterhead, be displayed at a place of business and appear on all docs lodged with ASIC.

• Can use your ACN as your company name

• ACN will be the same as ABN plus 2 additional digits. (if you already have ABN)

Trade marks• Other than getting out and developing a reputation, the only

other way of protecting the name is to register a trade mark.

• A trade mark can be a name, a logo or a combination of both.

• May be a smell, sound, shape, picture, aspect of packaging or colour.

• 45 different categories of goods and services

Trade marks

• Aim to register a TM in several different categories

• Gives you a monopoly on the use of that TM for those categories in which it is registered.

• You cannot alter the TM once it is registered.

• Registration of a TM lasts for 10 years- apply for renewal for further 10-year periods.

What you can’t register as a trade mark• Descriptive words like ‘Super Group’.

• Words that describe your goods or services, like ‘Plumber’ or ‘Radios’,

• That is why so many products have completely invented names, e.g. Xerox, Disprin, Kleenex, Microsoft etc.

• Difficult to register a geographic name or surname. - ‘Chicago’ or ‘America’, chances are you will only be able to protect the manner of its presentation, i.e. the logo

• Registration of a logo doesn’t give you a monopoly over the name; it gives you a monopoly over the logo that embodies the name.

• Use a TM that is already in and you may face legal action.

The ® and ™ symbols

• When a trade mark is registered and current, it is identified by the ® symbol.

• A trade mark that is not registered is identified by the ™ symbol.

• Both ® and ™ are enforceable.

• Businesses that have allowed their registration to cease are confident that they can prove that tm is in use by them, and that it is identifiable as being connected to their goods or services.

The costs of registering a trade mark

• Application to register (single class) $150• Registration (single class) $300• Assisted filing service: entry fee (single class) $90• Assisted filing service: Part 2 fee (single class) $90

• Remember that you many want to consider registering in more than 1 class, or registering more than 1 trade mark at a time.