You’ve Built an Art Business – But Who Owns the Name?

Photo by Olivie Strauss from Unsplash

The Art of Protecting Your Name

Built a following on Instagram or Etsy? Here’s why registering a trade mark could be the smartest thing you do for your art business this year.

You’ve picked the perfect name for your art business. You’ve built an Instagram following, opened an Etsy shop, printed business cards and maybe even sold at markets. Customers know you by that name.

So here’s the question we ask every creative who walks through our door: do you actually own it?

For most artists, the honest answer is “I’m not sure.” That is risky. If someone else registers your name as a trade mark first, you may find yourself fighting to keep it, even if you were using it before them.

“But I’ve already registered my business name. Isn’t that enough?”

This is the question we hear most, and the answer surprises people: no.

Registering a business name with ASIC is a legal requirement if you trade under a name other than your own. But it does not give you ownership of that name or stop anyone else from using it. The same goes for your ABN, your domain name and your Instagram handle.

A registered trade mark is different. Under the Trade Marks Act 1995 (Cth), registration gives you the exclusive right to use the mark for the goods and services it covers, and to stop others from using it without permission (section 20). Infringement is covered by section 120. A registration lasts 10 years and can be renewed indefinitely.

“What if I just keep using it? Doesn’t that count?”

Use does count for something. Without a registration, you may be able to rely on the common law tort of passing off, or on section 18 of the Australian Consumer Law, which prohibits misleading or deceptive conduct. The classic passing off case is Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 (PC).

But these claims are harder, slower and more expensive to run. You usually have to prove you have a real reputation in the name and that the public is being misled. A registered trade mark is a far simpler starting point.

“Can someone really take my name?”

Unfortunately, yes. If another business registers a trade mark that is the same as, or deceptively similar to, your name for similar goods, it can make life very difficult. You may have to rebrand, defend a claim, or spend money proving you were there first.

The good news is that a registered trade mark can be a powerful shield, even against the famous. Take the case Australians loved following: Katie Perry versus Katy Perry.

Australian fashion designer Katie Taylor (born Katie Perry) applied to register KATIE PERRY as a trade mark for clothing in 2008, shortly before the American pop star’s career took off. Years later, she sued the singer’s companies over Katy Perry branded merchandise sold in Australia. She won at first instance in Taylor v Killer Queen LLC [2023] FCA 364, lost when the Full Federal Court ordered her mark be cancelled in 2024, and then won again in the High Court.

In Taylor v Killer Queen LLC [2026] HCA 5, decided on 11 March 2026, a 3–2 majority restored her trade mark. The Court found the singer’s fame in music did not automatically extend to clothing, and that the merchandise sold under KATY PERRY infringed the designer’s registered mark. Her registration made all the difference.

The lesson for artists? Register early, and register for the right goods and services.

“I registered it years ago. Am I safe forever?”

Not quite. Under section 92 of the Trade Marks Act 1995, a registered trade mark can be removed if it has not been used for a continuous period of three years. Keep using your mark, keep records of that use, and renew it every 10 years.

“Can I trade mark any name I like?”

No. To be registered, a trade mark must be capable of distinguishing your goods or services from everyone else’s (section 41 of the Trade Marks Act 1995). That is why names that simply describe what you do, like “Melbourne Art Prints” or “Handmade Ceramics”, are hard to register. Other artists need to be free to use those words too.

The High Court looked closely at this in Cantarella Bros Pty Ltd v Modena Trading Pty Ltd [2014] HCA 48. The coffee marks ORO (Italian for “gold”) and CINQUE STELLE (“five stars”) were held to be registrable, because most Australians would not understand them as describing the coffee.

Your name also cannot be too close to someone else’s earlier mark for similar goods (section 44). How close is too close? In Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, the High Court found PROTOX was not deceptively similar to BOTOX, and that a mark’s fame is not part of that comparison. It is a question of looks, sound and overall impression.

“What if my business name is just my own name?”

Many artists trade under their own name, and that can be registered. Section 122 also gives a defence to someone using their own name in good faith. But a defence is not the same as owning your brand, and two artists can easily share a name. A registration gives you much more certainty.

“Can’t I trade mark myself online?”

You can, but its best to get legal advice before you do to make sure that its done right.

How Sharon Givoni Consulting can help

We have helped artists, designers, photographers and creative businesses protect their names for over 20 years. We can:

• search for any conflicts before you invest in a name
• advise on how distinctive your name is and how to make it stronger
• prepare and file your trade mark application in the right classes
• help extend your protection overseas
• deal with anyone who copies your name

Our motto is “Legal Ease, Not Legalese”, so we keep things simple. If you’ve built a name you love, contact Sharon Givoni Consulting and make sure it’s really yours.

We often think that the art is the main product, which it is, but then we might forget to protect the brand… | Photo by Oberon Copeland and Olivie Strauss (unsplash)

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.