The One Detail That Saves You Time and Money When Registering a Trade Mark
By IP Team
The One Detail That Saves You Time and Money When Registering a Trade Mark
In short: A trade mark must be owned by something with legal personality: a person, a company, or an incorporated body. A business name, a trading name, a trust and a partnership are none of those. If you run through a trust, the trustee is the owner. If you run through a partnership, the partners are.
You have decided to register your trade mark. That is the hard part done.
Before you fill anything in, one question is worth two minutes.
Who will own it?
Not who runs the business. Not what the business is called. Who, legally, holds the trade mark.
Get it right and your application starts clean. Get it loose and you can lose weeks to corrections on something that took two minutes to settle.
There is a short list of possible answers, and by the end of this page you will know which one is yours.
Still checking the name itself? Run a free trade mark search first. No account needed.
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Who can own a trade mark in Australia?
A person. Your full legal name, exactly as it appears on your official documents.
A company. The registered company name with its ACN. The applicant is the company itself, not its directors or shareholders.
An incorporated body, such as an incorporated association, under its registered name.
Two or more of these together, as joint owners.
These cannot own a trade mark, because in law they are arrangements or labels rather than entities: a business name, a trading name, a trust, a partnership, or a brand, website or logo on its own.
Each still has an answer. The answer is the person or company sitting behind it.
Should the owner be you or your company?
Sole trader: you, under your full legal name. Your ASIC registered business name is not an entity and cannot hold the mark.
Company: usually the company, under its registered name and ACN. The company is what trades and holds assets, and a trade mark is an asset.
Incorporating soon: worth a short conversation before you file, not after.
The principle is simple. The owner should be whoever genuinely uses the mark in trade, or intends to.
Can a business name own a trade mark?
No, and this is the most common confusion we see.
Registering a business name with ASIC tells the public who is behind a trading name. It does not create an entity. A business name always sits behind a person or a company, and that is who can own the mark.
So if you trade as Harbour Coffee and you are a sole trader, the owner is your legal name. If Harbour Coffee Pty Ltd exists, the company is the owner.
Our guide to business names, domains and trade marks covers how those three systems differ.
Can a trust own a trade mark?
No. A trust is not a company and not a separate entity. It is an arrangement, so it cannot hold the mark.
The trustee is the owner. Corporate trustee, and the applicant is that company with its ACN. Individual trustees, and it is those people under their full legal names.
The trust can still be recorded, as long as the trustee's legal name comes first:
Smith Holdings Pty Ltd as trustee for the Smith Family Trust
The trust name on its own will be queried. There is no entity there to hold anything.
Whether to record the trust at all, or simply apply in the trustee's name, depends on how the business is structured. If you run through a trust, that is worth two minutes with someone before you file.
What about a partnership?
Same principle. A partnership is not a separate entity in Australia, so it cannot be the owner.
File in the names of the partners as joint owners, or nominate one partner to hold it on behalf of the partnership. Which suits you depends on your partnership agreement and what happens if someone leaves.
What gets mixed up most often?
A trading name instead of the registered company name. The business is Harbour Coffee Pty Ltd, the application says Harbour Coffee.
A business name as the owner. Covered above.
A trust name instead of the trustee. Very common where everyone refers to the business by the trust name day to day.
An individual named while the ACN belongs to a company. The two halves do not describe the same entity.
Small differences in the legal name. A missing Pty Ltd, an abbreviation, a middle name left off. It has to match the official record exactly.
None of these are careless. The name you use daily and the name on your official records are rarely identical, and the application asks for the second one.
How do you check before you apply?
1. What is the entity behind the business? A person, a company, or the trustee or partners behind a trust or partnership.
2. Does the name match my official records exactly? Character for character, including Pty Ltd and middle names.
3. If it is a company, do I have the right ACN? Check the record, not your memory.
Two minutes. Do it at the same time as your free trade mark search, before you spend anything.
What happens if the owner details are wrong?
There are two problems here, and they behave very differently.
Naming something that is not an entity. A trust name, a business name, a partnership name. This gets picked up, because the application will not be accepted until the owner details describe something with legal personality. You will be asked to fix it, and in most cases it can be fixed by amending the applicant. The cost is time, not the mark.
Naming the wrong entity. You instead of your company, or one company in a group instead of the one that trades. This is quieter and more serious. The claim to ownership is not investigated unless it looks defective on its face, so it can pass through, register, and sit there looking healthy. It surfaces when someone challenges it, which is usually the moment you were relying on it.
The mistake that gets caught costs you weeks. The mistake that does not get caught is the one worth two minutes now.
If you applied through Trademarkability
You are looked after. Updates come to our IP expert team, and they contact you at your registered email with what it means and the best response. That is part of what you paid for.
If you applied somewhere else
Tell us what you filed and we will refer you to the right person to review it and set out a strategy, rather than patching the immediate problem. A fee applies, and you will know it before anything goes ahead.
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