What To Do When Someone Else Is Using Your Business Name?

Finding out that someone else is using your business name is a frustrating and potentially damaging experience. Whether a competitor has copied your trading name, stolen your brand, or a company is using your name without permission, you do have legal options in Australia. This guide explains exactly what to do when someone is using your business name, what laws protect you, when you can sue, and how to stop the infringement as quickly as possible.

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What Laws Govern Business Names in Australia?

Before taking action, it helps to understand which laws apply to business names in Australia. There are three main pieces of legislation relevant to business name disputes:

Law

What It Covers

Who Administers It

Business Names Registration Act 2011 (Cth)

Registration of business names in Australia

ASIC

Trade Marks Act 1995 (Cth)

Registered trademark rights and infringement

IP Australia / Federal Court

Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010)

Misleading and deceptive conduct in trade

ACCC / Federal Court

Common law (passing off)

Protection of the unregistered name’s goodwill

Federal Court


The law governing business names in Australia spans multiple Acts. Understanding which law business name disputes fall under is the key first step. More than one of these laws may apply simultaneously, which is why legal advice is essential before taking action.

In NSW, business names law follows the national framework set by the Business Names Registration Act 2011. There is no separate NSW business names legislation. However, disputes involving NSW-based businesses are commonly heard in the NSW Supreme Court (for state matters) or the Federal Court (for trademark and ACL claims). NSW business owners should be aware that ASIC registration alone does not protect their name from being used by another business in the same state.

Can Another Business Use My Name in Australia?

This is the first question most business owners ask, and the answer depends on one critical factor: whether you have a registered trademark.

Registering a business name with ASIC does not give you exclusive rights to that name. It simply means you are permitted to trade under that name. ASIC’s role is administrative, not protective. Two businesses can legally be registered under similar or identical names if they operate in different industries or states.

A registered trademark, on the other hand, does give you exclusive rights to use that name or mark in connection with your specified goods and services across Australia. If someone uses a name that is substantially identical or deceptively similar to your registered trademark for the same or related goods or services, they are infringing your trademark under the Trade Marks Act 1995 (Cth).

Protection Type

What It Gives You

Exclusive Rights?

ASIC business name registration

Permission to trade under the name

No

Registered trademark (IP Australia)

Exclusive rights to the name for your goods/services

Yes

Unregistered trademark (common law)

Some protection via passing off claim

Partial

Company name registration (ASIC)

Name uniqueness at the ASIC level only

No

 

What Are Your Legal Options When Someone Is Using Your Business Name?

Your available legal remedies depend on whether you hold a registered trademark. Here is how each pathway works.

Trademark Infringement (if you have a registered trademark)

If your business name is registered as a trademark with IP Australia, you have the strongest possible legal protection. Trademark infringement under Section 120 of the Trade Marks Act occurs when someone uses a mark that is substantially identical or deceptively similar to your registered trademark in relation to the same or similar goods or services, without your permission.

You do not need to prove that their use has damaged your reputation. Ownership and unauthorised use are enough to establish infringement. This makes trademark infringement a significantly stronger claim than passing off.

Remedies available to registered trademark owners include:

  • An injunction ordering the other party to stop using the name immediately
  • Damages or an account of profits (the revenue they made using your mark)
  • Delivery up or destruction of infringing materials
  • Legal costs in appropriate circumstances

Passing Off (if your trademark is unregistered)

If you do not have a registered trademark, you may still have a claim under the common law action of passing off. Passing off protects the goodwill and reputation you have built in your business name, even without formal registration.

To succeed in a passing off claim, you must prove three things:

  1. Reputation: Your business name has acquired a reputation or goodwill in Australia.
  2. Misrepresentation: The other party is misrepresenting their business as yours, or as connected to yours, in a way likely to deceive customers.
  3. Damage: You have suffered or are likely to suffer damage to your reputation or goodwill as a result.

Passing off claims are harder to win than trademark infringement cases because you must prove your reputation and actual damage. This is why registering your trademark is so important: it removes the burden of proving reputation entirely.

Misleading and Deceptive Conduct Under Australian Consumer Law

Section 18 of the Australian Consumer Law prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. If another business is using your name in a way that causes customers to believe they are dealing with you, or that there is some connection between your businesses, this may constitute a misuse of your company name under the ACL.

ACL claims can be brought alongside passing off or trademark infringement claims and do not require you to hold a registered trademark. The ACCC can also investigate serious cases of misleading and deceptive conduct.

What to Do If Someone Is Using Your Business Name: Step by Step

If you have just discovered someone is using your business name, here is the process to follow.

Document the infringement

Before taking any action, gather evidence. Take screenshots of their website, social media profiles, business listings, advertisements, and any other place they are using your name. Record the date you discovered the infringement and note how the name is being used. This evidence will be important for any legal action.

Check your IP position

Determine exactly what protection you currently have. Search IP Australia’s trademark register to confirm whether you have a registered trademark and what classes it covers. Also check whether the other party has registered your name as a trademark, as this creates a different situation that needs to be addressed urgently.

Get legal advice

Before contacting the other party or taking any action yourself, speak with a business lawyer experienced in intellectual property and business name disputes. Acting without legal advice can sometimes weaken your position or create liability.

Send a cease and desist letter

In most cases, the first formal step is a cease and desist letter for business name use. This is a formal written notice from your lawyer demanding that the other party stop using your business name by a specified date. A well-drafted cease and desist letter:

  • Clearly identifies the infringing conduct
  • State your legal basis for the demand (trademark infringement, passing off, or ACL)
  • Sets a deadline for compliance, typically 14 days
  • Outlines the consequences if they do not comply, including court proceedings
  • Request confirmation in writing that they have stopped

Many business name disputes are resolved at this stage without the need for litigation. A letter from a lawyer is taken far more seriously than a personal complaint.

Consider negotiation or mediation

If the other party disputes your claim, negotiation or mediation may resolve the matter without court proceedings. This can include a co-existence agreement, licensing arrangement, or agreement to transition away from your name over an agreed timeframe.

Commence court proceedings if necessary

If the other party disputes your claim, negotiation or mediation may resolve the matter without court proceedings. This can include a co-existence agreement, licensing arrangement, or agreement to transition away from your name over an agreed timeframe.

Can You Sue Someone for Using Your Business Name in Australia?

Yes. You can sue someone for using your business name in Australia, but the specific legal basis depends on your circumstances:

Your Situation

Legal Claim Available

Where to File

You have a registered trademark

Trademark infringement (Trade Marks Act 1995)

Federal Court of Australia

No registered trademark, but an established reputation

Passing off (common law)

Federal Court / Federal Circuit Court

The competitor is misleading customers about your identity

Misleading and deceptive conduct (ACL s.18)

Federal Court / ACCC complaint

All of the above

Combined claims (most common approach)

Federal Court of Australia

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What If Someone Has Trademarked Your Business Name?

This is one of the most alarming situations a business owner can face: you have been trading under a name for years, and you discover that someone else has registered it as a trademark. This does happen in Australia, and there are steps you can take.

If the trademark application is still pending (within 2 months of publication)

IP Australia publishes trademark applications for a 2-month opposition period. If you discover the application before the trademark is registered, you can file a Notice of Opposition. Grounds for opposition include that you have prior use of the name and the registration would damage your business.

If the trademark has already been registered

If the trademark has been registered, you can apply to IP Australia or the Federal Court to have it cancelled. Grounds for cancellation include:

  • You had prior continuous use of the name in Australia before the registration date
  • The trademark was registered in bad faith
  • The trademark is not being used by the registered owner
  • The trademark should not have been registered in the first place

If you had been using the name before the trademark was registered, you may have a prior use defence, meaning you may be able to continue using your name in the areas and for the services you were operating before registration. Get legal advice on this promptly.

Suing a Company That Has Changed Its Name

A related issue arises when a company has changed its trading name but continues to cause confusion with your brand. The name change does not extinguish any claims you may have from the period when they were using your name. You can still pursue compensation for damage suffered during that period.

If the new name is also similar enough to confuse, or if the company is still trading on goodwill built under your name, you may have ongoing grounds for a passing off or ACL claim. A business lawyer can advise whether the name change has fully resolved the issue or whether further action is warranted.

What If Someone Opened a Business in My Name?

If someone has opened a business using your name without your knowledge or consent, this is a particularly serious form of misuse of a company name. It may involve identity fraud if the business has been registered with ASIC using your personal details, or it may be a competitor or third party simply trading under a name similar to or identical to yours.

If the business has been fraudulently registered using your identity, report this to ASIC immediately. ASIC has a process for investigating and deregistering businesses registered using false information. You should also report the matter to the Australian Federal Police if identity fraud is involved.

If the business has simply been registered under a name identical or similar to yours, your options are the same as any other business name infringement: cease, passing off claim, trademark infringement if you hold a registered mark, or an ACL complaint. Get legal advice as soon as possible.

What If Someone Is Using Your Business Name Online or Without Permission?

A company using your name without permission online is increasingly common. Whether through social media, domain names, or paid advertising, the approach to enforcement differs slightly from offline infringement.

  • Social media platforms: Most major platforms, including Facebook, Instagram, LinkedIn, and X, have intellectual property complaint processes. If you hold a registered trademark, you can report the infringing account directly, and the platform will typically remove it or require a name change.
  • Domain names: If another party has registered a .au domain name that infringes your trademark, the Australian domain name authority (auDA) has a dispute resolution process. If you need to report someone using my brand name without permission on a domain, this is your first port of call.
  • Google and paid advertising: Google, Facebook, and other platforms will remove advertisements that misuse a protected trademark. Lodge a complaint through their intellectual property portals.
  • Instagram business name taken: If someone has registered your business name on Instagram, you can report the account using Instagram’s trademark complaint form. If you have a registered trademark, Instagram will typically act quickly. Without a registered trademark, the process is harder but still available if the account is clearly impersonating your business.

How to Protect Your Business Name from Being Used by Others

The most effective thing you can do is register your business name as a trademark with IP Australia before someone else does. Here is how to protect your brand properly:

 

  • Register your trademark now: Apply to IP Australia to register your business name, logo, or slogan as a trademark. Registration lasts 10 years and is renewable. Filing fees start from $330 per class of goods or services.
  • Conduct a trademark search first: Before trading under any name, search IP Australia’s register to confirm no one else holds a similar registered mark. This is also how to see if a company name is taken before you invest in your brand.
  • Monitor the register regularly: Check IP Australia’s register periodically for new applications that conflict with your business name. You have a 2-month window to oppose new applications.
  • Use the registered trademark symbol: Once registered, use the registered trademark symbol on your materials to put others on notice that the name is protected.
    Act quickly when you spot infringement: Delay can be used against you in enforcement proceedings. If you become aware of anyone using your name, get legal advice promptly.

Frequently Asked Questions

Start by documenting the infringement with screenshots and evidence, then get legal advice before contacting the other party. Your lawyer will assess whether you have a trademark infringement, passing off, or Australian Consumer Law claim, and will typically send a formal cease and desist letter as the first step.

Yes. If you hold a registered trademark, you can sue for trademark infringement under the Trade Marks Act 1995. If your trademark is unregistered, you may bring a passing off claim or an action for misleading and deceptive conduct under the Australian Consumer Law. Many cases resolve without going to court.

It depends on whether either business holds a registered trademark. ASIC registration alone does not stop another business from trading under the same or a similar name. However, doing so may expose them to a passing off claim or Australian Consumer Law liability if customers are likely to be confused between the two businesses.

No. Registering a business name with ASIC only permits you to trade under that name. It does not give you exclusive rights. To get exclusive rights, you need to register the name as a trademark with IP Australia.

It is possible to have a similar business name to another company if neither holds a registered trademark for it. However, trading under the same name as an established business can expose you to passing off claims and Australian Consumer Law liability if customers are confused between the two businesses.

A cease and desist letter is a formal legal notice from your lawyer demanding that another party stop using your business name by a specific deadline. It sets out your legal basis, what you require, and the consequences of non-compliance. Many business name disputes are resolved at this stage without court proceedings.

If the trademark application is still pending, file a Notice of Opposition with IP Australia within the 2-month opposition period. If it has already been registered, you may apply to have it cancelled on grounds including prior use or bad faith. Time limits apply, so get legal advice immediately.

They gain exclusive rights to use it for the specified goods and services. You may have a prior use defence if you were trading under the name before their registration. You can also apply to cancel the trademark on grounds of prior use, bad faith, or non-use. Act quickly as time limits apply.

Misuse of a company name occurs when another business uses your trading name or registered company name without permission in a way that misleads customers or damages your reputation. This can give rise to a passing off claim, a trademark infringement action, or a complaint under the Australian Consumer Law, depending on your IP position.

If your identity has been used fraudulently to register a business, report it to ASIC and the Australian Federal Police immediately. If a competitor has simply registered a name similar to yours, your options include a cease and desist letter, a passing off claim, or a trademark infringement action. Get legal advice as soon as possible.

If you hold a registered trademark, lodge intellectual property complaints directly with social media platforms and Google, which typically remove infringing content. For .au domain name disputes, auDA has a resolution process. If platform complaints fail, your lawyer can seek a court injunction to stop the use.

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