Business names are automatically protected under the law of 'passing off'. The court will order you to stop, and to compensate the owner of the same or a similar business name for any loss they have suffered, if:
- they are already using the name that you want, or one like it;
- the name has developed a reputation in the marketplace, so goodwill is attached to it; and
- consumers are misled (or might be misled) into thinking that you are the same business (ie you are 'passing off' your goods or services as being connected).
If you are both in the same industry sector, or trade in the same geographic area, you are at greater risk of a passing off action.
If the other business has registered the name you want, or one like, it as a trade mark, it is in an even stronger position, if you are using the name in relation to similar goods and services. There is no need to prove anyone is likely to be misled.
If there is a design element in a name, like a logo or graphic, it may be a 'literary creation' and therefore automatically protected under copyright law too. The other business can take you to court for infringing their copyright if you intentionally copy it, or a significant part of it. If you use it on your goods you can be forced to stop, hand them over, pay damages and account for profits you have made. Depending on the circumstances, it may also be a criminal offence.
