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Resources What does “available” mean?

  • Posted by Insight by Gavin Barnes
  • Published Current as at 25 October 2017
  • Category Insights

When it comes to a name – not what you think

In the history of every business there is that gem of a moment where somebody thinks up a name. It’s a genuine light bulb moment. THIS is the name that will define the business the founders are establishing. THIS is the name that marks a company’s position in the world, that tells customers and clients why they should buy from the business. THIS is the name that reflects why the business exists at all.

What’s in a name? Everything. It’s an ABN, a trade mark, a website domain, a logo, a business card, an office address. It’s everything.

And what does “available” mean when you’re talking about a business or company name? Sadly… absolutely nothing.

You may be sitting wondering what on earth this has to do with you. You’re an adviser, not a trade mark attorney, not a digital strategist or website developer. Think again!

Think instead about the power of the conversation all advisers should be having with start ups and business founders about getting the fundamentals right, from the moment they have that light bulb moment.

In most instances, when clients sit with their advisers to have the “chat” about setting up a bright, shiny new business, the first port-of-call is ASIC (Australian Securities and Investments Commission). A natural starting place, right? The definitive place to search for business and company names? Wrong!

Let’s enter the client’s chosen name – Marbles Ink. A quick search on ASIC’s site and good news! The previous business name registration has been cancelled. Playing field open. That’s what we like to see. Of course, there are caveats on the ASIC site about availability of business names and that’s all good, right? Wrong!

Despite the lack of certainty, this is generally where the conversation stops. If an adviser is involved, they will go ahead and register the business or company name. If not, the client will go ahead and do it themselves. They receive a registration certificate, and are off and trading. The name is the client’s now, it was apparently “available”.

So we move to the website the business wants to launch. or Think again. Both domains are taken, as are the other logical derivations. Back to the drawing board to come up with a similar domain name so customers can easily find the business.

And the brand the client invested in having created? Sadly, when they endeavour to register it as a trade mark (not having previously completed a trade mark availability search) they find a prior registration that is deceptively similar claiming goods/services of the same description. That rules the trade mark out. Does the adviser counsel them to risk operating without the protection of a trade mark? Should the business go ahead and potentially infringe another company’s mark?

It can happen so quickly. A great business idea and a light bulb moment can rapidly descend into a series of compromises or expensive rectification work that still may result in a loss of trade or the company in its entirety.

We’ve seen it happen… a large and successful commercial operator across Australia created a new name and rebranded the business, involving an investment of roughly $500,000. Mere days after the launch, the company received a “cease and desist” demand due to trade mark infringement. No one had checked the basics, and sadly Redchip was only called in by the company after the damage was done.

In a world where every start up or high growth new business is seeking markets beyond geographic borders, the fallout from failing to secure domain names in multiple derivations is serious. The implications of marketing a brand without relevant trade marks is potentially costly and damaging.

It all starts with a name. But that name doesn’t start with a simple ASIC search.

As advisers, whether we are accountants, lawyers, financial planners or business consultants, the responsibility lies squarely with us to have a broader conversation with our clients about the value that resides in their business name. The addition of just a couple more steps right at the start of the registration process will give our clients surety and certainty.

They can get on with the job of building a successful business without the legacy issues that will definitely arise at some stage should their business name conflict with others in the market, regardless of whether those names are ASIC-registered.

The commercial team at Redchip is available to support advisers and their clients in making sure “available” really means “available”. Contact us now.