Choosing a name
Why is a name important?
The name that you use to identify your band, work or performance is vital and valuable - it is the lifeblood of your reputation. If your artwork or performance is successful, the name will become a very important asset, for it is the name that sells tickets to an exhibition or a performance.
If you fail to protect your name you may be forced to change it, and the reputation that you have earned in that name will be lost. You will have to begin working with a new name and creating a new identity. A worst case scenario could include being required to change your name on the eve of that all important gallery opening or on the opening night of your performance.
How do you select a name?
When choosing a name to identify your work or performance (other than your own), you need to select one that is original, such as an invented word or a word that would not normally be associated with your particular artform. An example of the latter would be the name BLUR used by the English pop music group. Choosing an original name has these advantages:
- it will reduce the likelihood that you will infringe someone else’s rights;
- it will make it easier for you to establish a reputation in the name; and
- it will make it easier to register the name as a trade mark.
Before using a name it is important to conduct searches to see if there are other artists or businesses that have rights that may prevent you from using the name you have chosen. You can do this yourself or through a professional search agency. It is a good idea to select several quite different names in case you find that someone else has the right to use the one you first wanted and you need an alternative. It can be cheaper, and is quicker, to check them all at the same time. Your investigations should include:
- your own enquiries to determine whether any of the names you have chosen are already being used. Search the internet, street press, magazines, and other publications for other businesses relating to the particular artform you work in. If you plan to work overseas, you may need to check in the countries that interest you;
- a business name search through the Australian Securities and Investments Commission’s (ASIC) website which lists all Australian registered company and business names. Or contact an ASIC Business Centre for assistance;
- a trade mark search through IP Australia's offices and website for both registered trade marks and marks that have been applied for;
- an Australian Business Number search through the Business Entry Point. This will display all entities, including trusts, which may have a similar name and are registered for GST purposes;
- a domain name search, for example in relation to the .au domain, through the Aus Registry WHOIS Service www.ausregistry.com.au (for .com.au, .net.au, .org.au; .asn.au,.id.au and .gov.au) and the AUNIC Status service www.aunic.net/aunicstatus.html (for .edu.au). For global top level domains – see the WHOIS service.
If these investigations fail to find any use of your chosen name or similar names then you may start using the name with some degree of confidence. Be aware, however, that your searches may not have been thorough enough to guarantee that someone has not already got rights in the name.
If you discover that someone else already has the same or a similar name then you are faced with the option of either choosing another name or names (and repeating the investigations) or conducting further investigations to determine who is using the name, and in relation to what goods or services. Obviously, the second option will involve more time and effort and may require obtaining an opinion from a lawyer as to whether use of your name is likely to infringe the rights that the other person has in their name.
It may be that you can use a name or similar name to one that is already being used by someone else, particularly if the existing use of the name is in an area unrelated to the arts industry in which you are involved. However, it is best to proceed with caution, and it is certainly more advisable to use a unique name.
Who owns names in a partnership?
The membership of arts related partnerships is seldom static. Break ups often raise contentious issues such as: who has the right to use the name in the future, and how much compensation, if any, should be paid to leaving partners.
As with most things, preventative measures are best. If the group of artists enter into a formal partnership agreement then all rights and obligations will usually be defined in writing. Many arts related partnerships, though, do not have formal partnership agreements. Should this be the case, then according to each State’s respective partnership legislation, all parties are entitled to share equally in the capital and profits of the business and must contribute equally towards the losses sustained by the partnership. Therefore, the name is owned by all of the partners equally and partners can use the name in partnership with the other members but not individually unless permission is given by the other partners or the rights are sold.
Name registration and protection systems
There are number of Australian legal systems for the registration and protection of names used in business, some of which are mandatory, and not all of which apply throughout Australia. To further complicate matters, each system has its own rules.
Registered trade marks
The best way to protect a name is to register it as a trade mark. If you can afford to do it then do it.
A common misconception is that trade mark registration only applies to logos or the style in which a name is written. Once a name is registered as a trade mark (other than in a logo), however, the registered owner may enjoy a monopoly over use of that name (that is, the right to prevent others from using the name or a similar name), but only for the particular class or classes of goods or services (or both) for which it is registered. See the Arts Law Centre’s Information Sheet on Trade Marks for more information about this regime.
Business names
If you operate a business under a name other than your own name, or if you are a company under a name other than the company name, you must register the name used as a “business name” with the Department of Fair Trading or Consumer Affairs (or its equivalent) in the States or Territories in which you trade. In addition, most banks will not open an account for a group of people unless they have a registered business name.
You may also need to register a business name if you cannot use your real name to identify your work or performance because someone else has already established a reputation in the same name, and use by you of your real name would be likely to mislead or deceive the public or incorrectly suggest a connection between you and the other person.
It is important to realise that:
- registration of a business name does not give you the exclusive right to use the name, or confer any other rights in the name;
- registration of a business name may be useful, though to establish the reputation or connection between a name used and a particular business; and
- the rationale behind the business name system is a public policy one – to let consumers know who is actually running a business by making this information publicly available.
Any name may be registered provided that it is not capable of being confused with the name of a company, business or association already registered, and is not misleading or undesirable. For example, these kinds of words can be misleading: "corporation", "club", "society" or "institute". If an application is rejected on these grounds you will be notified. Further information in support of your application may also be requested. In many cases the relevant department may first reject the application, but may be more favourably inclined to consider a further application if you can provide persuasive written information to support it.
Registration costs vary, depending on the State or Territory (as at December 2004 they range from $70 to $130), and business name registrations must be renewed. There are other responsibilities associated with registration, including notifying any changes to the details recorded.
Domain names
If you intend to have an online presence, you will need a domain name for your website and email addresses. There is a registration system for domain names, which is different from the company, business, and trade mark registration systems. Registration costs vary, depending on the type of domain chosen, and the registration term.
Domain names are licensed (not owned) by registrants, and there is no property right in the name. Once a licence is granted, the registrant has the exclusive right to use the name in that domain for a limited period, (which can be renewed) on the terms of the licence. The same or a similar domain name can exist in another domain, though (for example, BLUR.com.au and BLUR.net.au), and similar domain names may have been registered in the same domain.
Be aware that domain names are granted on a “first come, first served” basis – so just because you have a name registered under another system (such as, as a business name or trade mark) doesn’t mean that you will be able to use that name as a domain name. There are, though, avenues to complain against some domain name registrations.
Reputation and misrepresentation
For most artists, especially when starting out, the cost of registering a trade mark seems too high. There are, however, potentially a number of other avenues of protection.
Under an action at general law called “passing off”, protection is given to those who use a name and develop a reputation in that name. This may not protect the person who first thought of the name. More important is who has established a reputation in the name. If there is a dispute in relation to the use of a name, and in the absence of any of the parties to the dispute having the name registered as a trade mark, it may come down to the question of who established a “sufficient” reputation in the name first. What constitutes a “sufficient” reputation is difficult to define and depends on the facts of each case.
In addition, the Federal Trade Practices Act, and similar State legislation called “Fair Trading” Acts prevent corporations and individuals from engaging in misleading or deceptive conduct. These laws have been used to stop people or companies from using particular names, or to place restrictions on their use.
It is a good idea to keep copies or records of articles, interviews, posters, performances and releases to help establish that you have a reputation using a particular name.
Disputes
If you discover that someone else is using your name the first thing to do is to undertake the searches discussed previously, determine the goods or services (or both) in relation to which they are using the name and (if you can) whether they have stronger rights to the name than you do. That is, have they registered the name as a trade mark, did they establish a sufficient reputation in the name before you? If you believe your rights are stronger than theirs, the next step is to write a letter to them asking them to stop using the name, explaining that you have a reputation in the name or a registered trade mark, or both. If they do not co-operate, see a lawyer or contact the Arts Law Centre of Australia for a referral to a lawyer.
More information
Business names
Search for registered business and company names using ASIC's National Names Index at http://www.asic.gov.au or contact your nearest ASIC Business Centre for assistance.
For information on registering a business name contact your State or Territory’s Department of Fair Trading or equivalent:
ACT Consumer Affairs Bureau, Fair Trading Department, tel: (02) 6207 0400
NSW Department of Fair Trading, tel: (02) 9286 0007
NT Office of Consumer Affairs and Fair Trading, tel: (08) 8999 5184
QLD Office of Consumer Affairs, tel: (07) 3246 1500
SA Office of Consumer and Business Affairs, tel: (08) 8204 9777
TAS Office of Consumer Affairs, tel: 1800 005 220
VIC Office of Fair Trading and Business Affairs, tel: (03) 9627 6200
WA Ministry of Fair Trading, tel: 1800 199 117
Domain names
For global top level domains: www.icann.org
For the .au domain: www.auda.org.au
For searching the .au domain: www.ausregistry.com.au; www.aunic.net/aunicstatus.html
For pricing: www.whatsinaname.com.au
Trade marks
IP Australia is the Federal government agency responsible for the registration of Australian trade marks, patents and designs. Their website http://www.ipaustralia.gov.au and State offices provide information on the registration process and searches of their databases. Telephone 1300 651 010 for contact details.
Australian Business Number
The Business Entry Point is a Federal Government website designed to assist businesses including registration for Australian Business Numbers (ABNs). Their website www.business.gov.au provides information and searches of their databases.
Arts Law Centre of Australia
Information Sheet - Trade Marks