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[LEGAL STUFF] Choosing a Band or Business Name

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You may think that choosing a band name or business name is as simple as coming up with a name that sounds good and suits your band or business, however, legally speaking, there are a lot of other things that need to be considered before you start using a name.

Step 1: Google search
Once you’ve come up with your band or business name, you need to ensure that no one else is using that name. The easiest place to start a search to see if the name is in use is with good old Google. A Google search will yield the most results and can save you from wasting your time with fiddlier, more technical searches. If you’re choosing a band name and the name is already in use by another band or anything music related, then ditch it and come up with another name. If you’re choosing a business name and it’s already in use by a business that’s similar or would trade in similar areas to you, then come up with another name. For a band, it’s best to avoid using a band name that’s already in use by anyone or anything in the entertainment industry as music and many other forms of entertainment fall into the same class of trade mark, which we’ll cover below. The same goes for a business name: avoid the same general area of trade so that your business won’t fall into the same class of trade mark as the other business with the similar name. If the name is in use, but it’s being used for something that is unlikely to ever be confused with your band or business, then you can consider using the name.

Step 2: ASIC search
The Australian Securities and Investments Commission (ASIC) is the government body that regulates companies, the stock market and financial services. Visit their website at asicconnect.asic.gov.au and perform an organisation and business name search to see if there are any companies or businesses registered using your proposed band or business name. If you’re using a word that’s purposely misspelled, then also perform a search using the correct spelling. If there are no companies or businesses using the name, then you can move onto the next step. If the name is already registered go back to step one with a new name. This article has been written with Australian bands and businesses in mind, but other countries have their own company and business name registers that can be searched online.

Step 3: Trade Mark search
To search the Australian trade mark register, head to IP Australia’s register search and enter your proposed band or business name. If it contains more than one word, you might want to be a bit more thorough by performing an advanced search. Once on the advanced search page, type each word of your proposed name in the boxes under the heading ‘word’. If it’s more than two words, press the plus symbol until enough boxes appear to allow you to search all of the words at once. If your search yields no results, switch the boxes that say ‘and’ between the words to ‘or’ so that you search trademarks containing any of the same words. This may return thousands of results, and, if that’s the case, just search the main or most identifiable words using the ‘or’ option. As with the ASIC search, if you’re using misspelled words, then search using the correct spelling too. In the advanced search, you have the option of search for part words, exact, phonetic and a number of other options. It’s worth having a good search, just to be certain that nothing too similar has been registered.

If you don’t find anything similar to your proposed name, great, you can move on. However, it’s likely that you’ll be presented with a list of results with either the same or similar names. Now this is where it gets technical, too technical to fully outline in this article, but you can find further trade mark information on IP Australia’s website or you can visit a lawyer for advice. If your search comes up with a number of results, check each one to see how similar they are to your chosen name and then, if they are similar or the same, look at the classes they’ve been registered in.

A trade mark class is the general area of trade that a trade mark is protected within. A trade mark for spray paint registered in class 2, which includes paints and resins, would be unlikely to prevent another business with the same or a similar name that sells coffee products from being registered in class 32, which includes beverages, because the two trade marks are unlikely to be confused. A full list of the classes and their descriptions can be found at this link.

For bands, if any of the trade marks that are similar to or the same as your proposed name have been registered in classes 41 or 9, then forget the name altogether because those classes include activities that your band is likely to trade in like musical performances and recordings. Classes 16 and 25 are also good ones to avoid because they include merch such as stickers, posters and clothing. For a business that’s not a band, you’ll need to look at the list of classes at the link above to see which classes are relevant to your business and then avoid choosing a name that’s similar to or the same as any trade mark that’s registered in a class that your business will trade in.

To massively simplify the trade mark and trade practice laws: you can’t trade using a name that is deceptive, misleading, likely to deceive or mislead or that is likely to cause confusion. Hence you want to avoid having a similar name to a business (a band is also a business) that trades in a similar area to yours.

If there is a registered trade mark that is the same or similar to the name you intend to use, but not registered in any classes that are relevant to your band or business, then you might be able to use it, however if it’s registered in a class that is similar to classes that you will trade in, then you should seek professional advice because there is often a fine line between acceptable and infringement.

Step 5: Domain name search
If you get to this point, you now need to check if there’s a decent domain name available. Using one of the millions of domain name registering websites, search to see if your proposed name, or at least an appropriate variation of it, is available. If so, move on. If not, rethink.

Step 6: Apply for an ABN and register a business name
Once you’ve determined that your band or business name passes all of the above tests, go and apply for an ABN and then register the business name. A band is a business trading under the band’s name, so whether the name is for a band or any other kind of business, it will need an ABN and a registered business name. You can apply for an ABN from the Australian Businesses Register website abr.gov.au and you can register a business name from the ASIC website asic.gov.au.

Other countries
The ASIC and trade mark searches above both only search for registrations within Australia, so there is a possibility that your band or business name may already be registered as a company, business or trade mark in another country. You can search multiple international sources for international trade marks on the World Intellectual Property Organisation (WIPO) website, but the search is less user friendly than searching the Australian register and yields numerous results so it’s generally easier to start with the Australian search and then move onto the WIPO search later. As for business and company names, there are numerous registers around the world, so to search every country would be incredibly time consuming and hopefully the Google search would have alerted you to most of the similar names anyway. You could consider searching the major countries that you think your band or business might end up trading in, such as the US or parts of Europe. If your business is likely to be limited to trading in Australia, eg. a cafe, international searches are less of a concern, but you never know, you may end up with the next multi-national restaurant chain. If your name does end up infringing a trade mark in a particular country, you can always resort to the fall back option of trading under a different name in that country, just as Ghost are known as Ghost B.C. in the US.

Amanda Mason is a lawyer at Media Arts Lawyers, a boutique music, entertainment industry, intellectual property and commercial law practice. For further information or to arrange a consultation with Amanda, please visit Media Arts Lawyers’ website.

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