I’m in the process of starting a catering business and have come across a small company that, I think, has a great name/brand/logo, all registered.
I’ve heard they aren’t doing very well at the moment, but I don’t know if I could afford to buy the whole company. Is it possible to buy the brand of another company or do you legally have to buy the whole thing?
What you wish to do is certainly possible, and frequently done, in Australia.
The first issue is whether the struggling company is prepared to sell their name, because depending on what line of business they are in, they may not be able to continue on without it.
Of course, if their main customer base is either geographical or based on an existing, contactable customer list, they may be very willing to sell, because the branding could be of more value to you than to them.
If they do agree to this, then you need to do some “due diligence” to make sure that you will be able to secure good title to the brand, and stop anyone else from trying to pilfer it.
With a fairly simple agreement transferring the name to you, the “prior use” by the other business will count as use by you, as they will be your “predecessor-in-title”.
Once you get an agreement in principle, you should then file a trademark application ASAP (assuming the other company hasn’t actually done this yet), to secure the “priority date” of the trade mark application.
This doesn’t need to wait until you have inked the deal, but you should probably let the other side know what you are doing – it is bit like putting a caveat on a title when you have paid a deposit to buy a house.
Alternatively, you could make the application in their name – either way it is simple enough to transfer the TM application from one company to the other depending on whether the deal is finalised or falls over.
