Business Startup

A business can be structured in a number of different ways, including sole trader, partnership, trust and company. Each of these have different legal characteristics and costs which can affect your tax obligations and asset management.

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For example, you may wish to hold certain assets, such as your Intellectual Property (IP) portfolio, under a separate entity to protect these assets from your other business liabilities.

It is important to select a business structure which best suits your circumstances and the nature of your business.

• Each business structure has different advantages and disadvantages.
• Identify which business structure is best suited to your enterprise.

Selecting your business and product names are central to establishing a strong brand identity.

It is crucial to undertake international business and product name availability searches at the early stages of business planning. This is because if your proposed business or product name conflicts with any existing names or trade marks, they may be rejected for registration and infringe upon exisiting rights.

• Undertaking clearance searches early on can save you from wasting time and money on unsuccessful applications and reduce the risk of inadvertently infringing on another party’s trade mark.
• Conducting business and product name availability searches in all relevant jurisdictions will ensure you can establish a consistent brand identity across all relevant markets.

A Business Name is the name used to identify your business to your customers. This is required if the legal entity that owns a business wants to identify it under a different name.

If you want to carry on a business under a business name in Australia, you must register your business name with the Australian Securities and Investments Commission (ASIC). Before this can be done, you must have an Australian business number (ABN) or an ABN application number.

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Note that registering a business name does not grant you with any exclusive rights or ownership over your business name. This means, registering a business name alone does not allow you to stop others from using the same or a similar business name in respect of goods/ services that are similar to yours. One way you can prevent imitators from exploiting your brand is to register your business name as a Trade Mark.

• A Business Name is the name used to identify your business to your customers.
• A Business Name does not grant you exclusivity to use the name.
• Consider registering your Business Name as a Trade Mark to prevent confusion in the marketplace.

Consider registering your brand assets both domestically and overseas when planning your business to effectively protect your business and product names. These may include registering a Business Name, Trade Marks and Domain Names.

• A Business Name is the registered name used to identify your business to your customers.
• A Trade Mark makes your brand recognisable by distinguishing your products/ services from others in the marketplace.
• A Domain Name is your business' address on the internet.

Note that Business Names, Trade Marks and Domain Names are national rights which do not offer protection overseas. You should therefore consider to apply to register these in any jurisdictions where your business will operate. Each country will decide whether you can proceed to registration in accordance with their own national laws and requirements. For example, If you wish to use a ‘.com.au’ or ‘.net.au’ Domain Name, you must be a commercial entity and have either an Australian Company Number (CAN) or Australian Business Number (ABN).

Like Business Names, registering a Domain Name does not of itself confer any proprietary rights in the use of that name. This means you will not have any rights to take action against third parties who use your domain name in promoting their own brand. To secure your brand, it is a good idea to have any registered Domain Name also registered as a Trade Mark.

• Registering a Business Name, Trade Mark and Domain Name is crucial to protecting your brand assets.
• Identify the countries in which your products/ services will be sold or manufactured and their respective national requirements for IP protection.
• Prepare the relevant documentation required to register your brand assets (e.g. business name, product names, logo designs, owner’s details, relevant goods/ services etc.).

You will need to manage and, in many cases, make changes to your IP portfolio as your business grows. For example, you may seek to transfer IP assets to a different legal entity (e.g. from a sole trader to a company), extend protection to additional countries as your business expands internationally, or amend the goods and/or services to which any registrations apply as your product/ service range grows.

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You should also be aware of any registration renewal timelines and monitor for potentially infringing conduct by your competitors.

• It is important to ensure your IP assets are up to date and reflect your business activities.
• Develop an IP infringement strategy to help you address any infringement issues and avoid confusion in the marketplace.

As your business develops, you may wish to exploit your IP asset portfolio by entering into commercialisation arrangements with other entities. One way you might do this is by selling your IP directly to another party through the process of assignment, after which you will no longer retain any rights to the IP. Alternatively, you may wish to license your IP rights by giving permission to another party to use your IP on agreed terms and conditions.

• Identify any potential future business opportunities for transactions and licensing.
• Consider selling or licensing your established IP assets.