Trademark Registration vs. Business Name Protection: What’s the Difference?

Exploring Business Identity Safeguarding: Trademark Registration versus Business Name Protection

When it comes to safeguarding your business identity, there are multiple avenues to explore.

Two methods offered by National Business Register are Trademark Registration and Business Name Protection. But what exactly are the differences between the two, and which option is right for your business? Let’s look into the pros and cons of each.

Registering a trade mark is a registered form of intellectual property. If you have not registered a trademark and it appears someone is copying your business you will likely need to rely on the common law tort of ‘passing off’ which is in essence name copying.

Passing off protects the goodwill and reputation associated with a business or its products. It occurs when one party misrepresents their goods, services, or business as being associated with another party, leading to confusion among consumers. Passing off allows businesses to prevent others from unfairly benefiting from their established reputation and brand identity.

To successfully claim passing off, a business must demonstrate that it has built up:

• goodwill and reputation in its business name or brand, and
• that there is misrepresentation by another party, and
• it has or is likely to cause damage or confusion to consumers.
  

A trade mark is said to provide the gold standard level of intellectual property protection.

That is because it gives you exclusive rights to that registered trademark in the jurisdiction and classifications registered. Not all businesses can trade mark their company name, and for many businesses registering a trade mark is not financially accessible. For this reason, National Business Register has developed a product called Business Name Protection. The aim of this product is to ensure regional businesses are able to protect their business name within the area and industry that they trade, finally making Intellectual Property accessible for all.

Business Name Protection is marketed through a sub brand called Start.Biz. We’ll now look into the pros and cons of Trademarks versus Business Name Protection so that you’re able to weigh up the most suitable form of Intellectual Property Protection for your business.

Trademark Registration:

Pros:

1. Exclusive Rights: Trademark registration grants you exclusive rights to use your business name, logo, or slogan in connection with your goods or services within the designated classes. This prevents others from using similar marks in a way that could confuse consumers and dilute your brand’s identity. It is the gold standard level of protection.
2. Legal Protection: Once registered, your trademark becomes a valuable asset that can be enforced through legal means. In case of infringement, you have the right to take legal action against those who unlawfully use your trademark, seeking remedies such as damages or injunctions.
3. Coverage: Trademarks provide cover in whatever jurisdictions you have registered your marks. This allows you to assert your rights against infringers regardless of their location within the UK if you have registered a trademark within the UK. However, you are able to gain exclusive use globally if you register your trademark globally.

Cons:

1. Cost and Time: Trademark registration can be a time-consuming and costly process. This all depends upon the number of trademarks you wish to register and the classes ( or sectors) you wish to register those marks in. Each additional class is an additional expense. Just as each jurisdiction is an additional expense. From conducting comprehensive searches to filing the application and responding to office actions, the associated fees and administrative burden can add up. In the UK
   trademarks that are not facing opposition by others are taking around 3 months to register.
2. Renewal and Maintenance: Trademarks require periodic renewal to remain in force. Failure to renew your trademark on time can result in its lapse, leaving your brand vulnerable to infringement. In the UK, you need to renew your trademark and pay the relevant fees every 10 years.
3. Distinctive: A trademark needs to be distinctive not descriptive. As a result, sit will be difficult for some businesses to trade mark their businesses name. Bromsgrove Bakery, Birmingham Taxis and The Gift Shop may be difficult to protect via registering a trademark.

Business Name Protection:

Pros:

1. Immediate Protection: Business Name Protection protects your business name against passing off from the time you register it. This can offer immediate protection against passing off. By establishing goodwill and reputation through consistent use of your business name, you can assert your rights and prevent others from misrepresenting their goods or services as yours.
2. Cost-Effective: Compared to trademark registration, Business Name Protection is a more cost-effective solution for businesses that cannot afford or do not want to pursue formal trademark protection. Business Name Protection is £99+VAT per year which means it is far more accessible.
3. Flexibility: Business Name Registration allows businesses to protect their names within the sector or industry they work but there is not an additional fee per goods or services categories. This flexibility is particularly beneficial for companies with diverse offerings or evolving business models.
4. Descriptive and Distinctive: Names which include a product, service or location are able to be protected by Business Name Protection. If a trademark is unavailable, Business Name Protection offers a layer of protection, with the £10,000 worth of legal cover should there be a passing off case, that would otherwise be unavailable.

Cons:

1. Limited Scope: While Business Name Protection provides a level of protection against passing off, it may not offer the same breadth of coverage as registered trademarks. In cases where infringement occurs outside the scope of passing off, legal recourse may be limited. It can be harder to prove someone is passing themselves off as your business in comparison to proving trademark infringement. This is why having the £10,000 of legal fees covered within the Business Name Protection product is incredibly useful.
2. Proof of Goodwill: To successfully assert passing off claims, businesses must demonstrate evidence of goodwill and reputation associated with their business name. This may require documentation such as customer testimonials, advertising materials, or evidence of market presence. You are able to register a trademark and have exclusive use to it before you have even started trading.

In conclusion, both Trademark Registration and Business Name Protection offer valuable means of protecting your business identity. Trademark registration provides comprehensive legal protection and exclusive rights, albeit with higher costs and administrative requirements. This allows cover of your brand as a whole, as logos, tag lines and phrases can be protected along with a business’ name. Design registration should be considered also when trying to protect a brand as a whole. On the other hand, Business Name Protection offers immediate protection against passing off, providing a cost-effective solution for businesses without formal trademarks.

Ultimately, the choice between the two depends on your business’s specific needs, budget, and long-term goals. As the two forms of protection appeal to quite different businesses, National Business Register added a sub brand called Start.Biz to specifically provide Business Name Protection.

Consulting with a specialist in Intellectual Property can help you navigate the complexities of both options and devise a tailored strategy to safeguard your business name effectively.

Don’t leave your business identity vulnerable to exploitation – take proactive steps to protect it today and secure the future success of your enterprise. Whether through Trademark registration through National Business Register or Business Name Protection through Start.Biz, investing in intellectual property protection is an investment in the longevity and reputation of your brand.

Should you wish register a business or discuss your business’ Intellectual Property and the best tool to safeguard your business’ most valuable asset please feel free to email us at info@start.biz or call 0800 069 9090 . Use our search tool for a Business Name availability check.