Can I trade under a name which is different from my business name?

If there was a common name for a business that has not been trademarked, would I be able to trade mark it?

• If there was a common name for a business that has not been trademarked, would I be able to trade mark it? for example, there are a few cafes in australia (in different districts) called 'sweetcakes cafe' how ever the name has not been trademarked yet. if i were to open up a cafe and name it 'sweetcakes cafe' would i be able to trademark the name? If i can trademark it, does that mean that the other 'sweetcakes cafe' have to change their name? thanks.

• Answer:

  Certainly not! Once a trademark is already being used by others, you cannot use the same or similar mark on any goods or services in a related field that might cause customer confusion. In most Common Law countries (such as Australia), the trademark rights emerge from "first use", not simply from "registration." For instance, as mentioned in wikipedia: "Section 17 of the Trade Marks Act defines a trade mark as "a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person." "The legislation does not codify the law of trade marks in Australia; as a common law jurisdiction, a trade mark owner may also (for example) seek to protect its rights through legal proceedings for passing off."