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 years);
  • businesses to apply for a business name and number simultaneously, online, at any time with immediate confirmation (or rejection);
  • 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 of business).

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 name.

As noted above, your business name cannot be identical or nearly identical to names, including any distinguishing marks, already on the register.

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.

Transitional implications

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.