When you're launching a new business, there are a hundred things competing for your attention. Brand protection often slides down the list. Many founders secure a domain name, set up a website, and move on, assuming the hard work is done. But a domain name and a trademark are two very different things, and confusing them can leave your brand completely exposed. Here's what every Australian founder and business owner should understand before going to market.
A Domain Name Is Not a Trademark
This is one of the most common misconceptions in small business. Your business name, company name, and domain name are not the same as a registered trademark, and none of them automatically give you trademark protection.
Registering a business name through ASIC, or securing a .com.au domain, does not mean you own an exclusive right to use that name as a brand. A registered trademark, on the other hand, gives you the legal right to use a mark in relation to specific goods or services in Australia, and to take action against others who use a confusingly similar mark.
It's worth noting that not everything can be trademarked. Generic or descriptive words that are commonly used in an industry, such as "doctor", "health" or "sports", cannot be registered as trademarks on their own. So if your domain name is built around common descriptive terms, you may find it difficult or impossible to get trademark protection for it.
The bottom line: securing a domain name is just one piece of the puzzle. Trademark registration is a separate process that requires its own attention.
Choosing Your Domain Name Wisely
Getting a domain name is usually the first step in building an online presence. The process feels simple, but there are real legal risks if you don't do your due diligence first.
Before you register a domain, you should check:
- Whether the name is available as an Australian trademark (search IP Australia's register)
- Whether a business or company with a similar name is already registered
- Whether the name, or something confusingly similar, is being used on social media by an existing brand
Using someone else's registered trademark as your domain name, your business name, or your social media handle, even if you change the spelling slightly or add a word, can expose you to a trademark infringement claim. The existing trademark owner doesn't have to show you copied them intentionally. If there's a likelihood of confusion in the marketplace, that can be enough to trigger legal action.
Infringement proceedings are expensive and stressful. Getting this right before you launch is far cheaper than dealing with it afterwards.
Use It or Lose It: The Non-Use Rule
Registering a trademark is not a set-and-forget exercise. Under section 92 of the Trade Marks Act 1995 (Cth), a registered trademark can be removed from the register if it has not been used for a continuous period of three years.
This is known as the "use it or lose it" rule, and it matters for two reasons.
First, if you hold a registered trademark but stop using it, a competitor or third party can apply to have it removed. Once removed, you lose the protection it gave you.
Second, the use must be genuine commercial use. A token or symbolic use of the mark, for example, a quiet internal "launch" with no real commercial activity, is unlikely to satisfy the requirement. The law expects you to actually use the mark in trade in Australia in connection with the goods or services it covers.
The purpose of the rule is to prevent trademark "squatting", where someone registers a mark with no intention of using it themselves, hoping to sell it to the rightful creator at a premium later on. If someone opposes a trademark registration on non-use grounds, the registered owner needs to be able to demonstrate genuine, good-faith use in Australia.
What Happens When Things Go Wrong
Trademark disputes can escalate quickly and become extremely costly. A well-publicised example in Australia involved a trademark dispute in the fast food industry (widely reported as "the case about burgers") where one party lodged a non-use application with the Registrar of Trademarks. That application was referred to the Federal Court under section 94 of the Trade Marks Act.
The case involved multiple hearings and had not been resolved at the time the original legal commentary was written. What was clear even then was that the legal costs alone were running into the millions of dollars, before any consideration of damages or penalties for infringement.
For a founder or small business owner, a dispute of that scale could be business-ending. The lesson is not that you need to fear litigation, but that a small investment in getting your brand protection right from the start can save you from catastrophic expense down the track.
Protecting Your Brand from Day One
If you're starting a business or launching a new product or service, here's a practical checklist to work through before you go public with your brand:
- Search before you commit. Check IP Australia's trademark database and ASIC's business name register before you settle on a name.
- Register your domain early. Once you've confirmed your name is clear, secure your domain name and relevant social media handles promptly.
- Apply for trademark registration. Work with a trademark attorney or IP adviser to file your trademark application in the right classes for your goods or services.
- Use your trademark consistently. Once registered, make sure you're using the mark in genuine commercial activity in Australia and keep records of that use.
- Protect your confidential information. As you develop your brand and business model, make sure you have appropriate agreements in place with co-founders, advisers, and contractors. A Mutual Confidentiality Agreement is a good starting point for protecting sensitive information you share during early-stage discussions.
Brand protection doesn't stop at trademarks and domain names. Think about the full picture: who has access to your business ideas, your go-to-market strategy, and your customer information, and whether you have the right documents in place to protect all of it.
Get Advice Before You Launch
Trademark law has real teeth. Getting your domain name and trademark strategy right from the beginning is one of the most valuable things you can do for your business. Mistakes made early, like launching under a name that infringes someone else's trademark, can be very difficult and expensive to undo.
If you're not sure where to start, speak with an Australian IP lawyer or commercial solicitor before you go to market. The cost of early advice is a fraction of what litigation costs later.
Mode.law is designed to help Australian founders and business owners access clear, practical legal documents from day one. Browse the full document library at /documents to find the agreements you need as you build and protect your business.