BALDWINS • FoodLegal

Australian Lawyers and Consultants

Same Business Spells Trouble

June 1999

Baldwins has appeared successfully in the Federal Court in disputes over similar business names, similar styles of product or services, and similar technologies. The Australian Securities and Investment Commission (ASIC) allows the registration of companies with identical names and without regard to identical business names or trademarks. Yet many people are unaware that the registration of a company with a particular name does NOT give owners a right to use that name for their business.

The liability risks associated with infringements of similar names and other intellectual property rights can be very sizeable. Take the hypothetical case of A who has been operating a nightclub in Melbourne under the registered business name “Junk House” for a period of five years. The nightclub is well known. B then establishes a company called “Junk House Pty Ltd” and begins operating a nightclub under that name.

Although B has established his company with that name, he still may not have any right to use the company’s name for his trading business. In the scenario above, B is likely to be prohibited from using the name and may face a damages bill for committing the tort of passing off and contravening sections 52 and 53 of the Trade Practices Act.

In a well-known case, Target Australia Pty Ltd was prevented from opening a store within 30 kilometers of Launceston because another retailer had been operating for many years in Launceston as Targetts Pty Ltd.

Baldwins can advise in all situations involving intellectual property rights covering issues such as names, logos, trademarks, franchise rights, internet domain names, copyright, technology rights and trade secrets.

For further information, contact Joe Lederman at BALDWINS, Australian Lawyers & Consultants.

Return to the Intellectual Property Law Archive.