Choosing a name for your business can feel like a turning point. Once the company is set up, the domain name is bought and the website and/or social media pages are live, it is very easy to assume the brand is now safely protected. In reality, that is often not the case.

Under UK law, each of those steps does something different, and most of them do not actually protect the brand itself.

Company names: legal identity, not brand ownership

Registering a company name with Companies House is an important administrative step. It creates the legal entity and makes sure the people behind it are publicly known.

What it does not do is give you the right to use that name exclusively in the market. Companies House does not check for trade mark conflicts and it does not regulate how a name is used in the real world. As a result, two businesses can trade under very similar names and register them with Companies House even though one of them might be infringing the trade mark rights of the other.

A trade mark owner can also seek to dispute the name of a third party company and have it changed where it is the same or confusingly similar to a name where the trade mark owner has goodwill or reputation.

A Companies House registration therefore does not give you the exclusive right to use the company name in trade, rather it creates a legal entity to hold the business assets.

Domain names: website address

Owning a domain name gives you control of a web address, not ownership of the name itself. Domain systems work on availability rather than on legal entitlement. The domain registrars do not consider trade mark rights on allocation, rather they are given out on a first come, first served basis upon the payment of the relevant fee.

So while a domain name is very useful for securing and managing your online presence, it is not a legal shield for your brand name. A trade mark owner can still seek to dispute the ownership of a third party domain and have it transferred to it, in particular where it can demonstrate that the registration or use of the domain name is abusive or in bad faith.

Trade marks: exclusivity for use

Trade marks exist for a different purpose. They indicate where goods and services come from and help customers tell one business apart from another. A trade mark can be in the form of for example, a word, logo, colour, shape, or a combination of these.

In the UK, once a trade mark is registered with the UK Intellectual Property Office (or EU Intellectual Property Office for EU trade marks), you obtain the exclusive right to use it for the goods and services covered under the registration and can stop others from using the same or confusingly similar mark. In the UK and EU, trade mark registration remains the most reliable and easiest way to protect a brand in a meaningful and enforceable way.

For trade marks to be registered, they must be distinctive and not descriptive of the applied-for goods/services. Once registered, they can last indefinitely provided they are renewed every 10 years.

Why timing matters

Timing makes a real difference. Many businesses only start thinking about trade marks after they have incorporated, launched their website and invested in their branding. By that stage, changing direction can be both expensive and disruptive.

It is not uncommon for companies to have spent significant sums on design, web content and packaging, only to later discover a conflicting earlier trade mark. Running a trade mark clearance search early on, before you commit to a name, can save a great deal of time, cost and frustration in the long term as well as reduce the risk of trade mark infringement.

Key points to remember: Three systems, three purposes

Companies House records legal entities. Registering a company name creates a legal entity but does not give you automatic rights over the brand.
Domain registries allocate online addresses. Owning a domain gives you control of the website address, not ownership of the brand behind it.
Trade mark registrations protect brand identity giving exclusive use and control over it. Trade marks offer the strongest form of legal protection for a name, logo or other brand sign.

Problems arise when these systems are treated as if they do the same thing. Each has its own role, and assuming that registration in one gives you protection in another is where many issues begin. They do not overlap in that way, rather they are simply complementary to each other. Trade marks should be checked before you choose or roll out a company or trading name. Checking availability early on can help you avoid rebrands and disputes later on.

Starting or growing a business?

If your business name matters to your commercial identity, it is worth having it checked and, where possible, protected before you use it on packaging, your website or your marketing materials. It is almost always easier and cheaper to prevent a problem than to fix one after the brand is already out in the world.

If you would like to carry out a trade mark search, register your brand or would like to discuss any of the topics in this article, please contact Karen Lee or any member of our Intellectual Property team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog. Please also see a copy of our terms of use here in respect of our website which apply also to all of our blogs.