Most Read Contributor in Australia, September 2016
Earlier this year, we reported that the Government released a
draft bill proposing a national business name registration system
(New System) in place of the separate systems
currently administered by each State. On 3 November 2011, the
Business Names Registration Act 2011 was approved by the
Governor General after passing through Parliament.
The New System is currently scheduled to be implemented by the
first half of 2012, subject to all the States passing legislation
to refer their business name registration powers to the
Commonwealth. The new system will be operated by the
Australian Securities and Investments Commission
(ASIC), and provides for:
lower registration fees ($30 for 1 year or $70 for 3
businesses to apply for a business name and number
simultaneously, online, at any time with immediate confirmation (or
review of ASIC decisions on application to the Administrative
Appeals Tribunal; and
consumers to conduct free searches of ASIC's online
database in relation to registered business names (such as the
registered proprietor of the business name and its principal place
If you currently have a registered business name
If your business name is currently registered under a State and
Territory business names system, it will automatically be
rolled over into the New System operated by ASIC, and subject to
ASIC's lower fee structure. If your business name has been
registered in several States or Territories, these will be
consolidated into one registration.
Where your business name is identical or nearly identical to
other business names being rolled over from different States, ASIC
may insert a distinguishing mark or expression on the register.
This distinguishing mark/expression will not be included in the
business name itself, so there would be no need to change the
business name on your signage or stationery.
Therefore, it is important to ensure that your State registered
business name does not lapse prior to the introduction of the
national system. Otherwise, your current business name will not be
rolled over into the national system, and may then be precluded
from registering in the New System due to conflicts with other
business names that were rolled over into the New System.
If you need to register a business name
Not registering your business name will be an offence if you to
carry on an enterprise in Australia without trading under your own
entity name (for example, you do not trade under your own name,
your company's name or the names of you and the other partners
in your partnership).
To register under the New System, you will need to have an
Australian Business Number (ABN) or be in the
process of applying for an ABN. The business must also not have
been refused an ABN in the past in order to register a new business
As noted above, your business name cannot be identical or nearly
identical to names, including any distinguishing marks, already on
Business names and intellectual property
Registering your business name will not itself give intellectual
property rights over the name, as provided by trade mark law. If
you want to be able to enforce intellectual property rights in a
business name and prevent other businesses from using your name in
relation to similar goods or services, you will need to apply for
trade mark protection under the Trade Marks Act 1995. It
is also advisable to obtain legal advice regarding protection of
other intellectual property, such as domain names.
We also recommend that you consider the transitional
implications for your business of the move towards a national
business name registration system, and seek advice where
appropriate. For instance, franchisors will need to consider the
implications of the new system where, for example, they currently
permit their franchisees to register business names in the relevant
States in which those franchisees operate.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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