You can register a new business name for several reasons, whether for an entirely new business or a pivot of an existing business. This decision will have many legal and commercial considerations. This article will outline these considerations and how to provide the greatest protection when you change your business name.
When you change your business name, you must register that new name through ASIC Connect or the Business Registration Service. This registration is connected to the entity's Australian Business Number (ABN). For each business that you operate, you must trade under your entity's name or register a business name. If your company name is Good Cafe Pty Ltd and you wish to trade under 'Good Cafe,' you must register that business name. Also, where you wish to trade under any other name and display your business to the public under that name, you will need to register it.
Availability
If you are setting up a new business venture, you must determine that your new business name is available. You can do this by conducting a search on ASIC Connect under 'check business name availability'. If the name is not available, you will need to consider a new name for your business.
A name may not be available for two reasons. Firstly, another entity has registered a similar business name. Secondly, a company may have the same name. If the name is available, there are other searches you should conduct before you commit to the name.
Additionally, another business may have registered a domain name that is similar to your business name or trade mark. In that case, you may have the ability to take it back from them. '.auDA' is a regulatory body that facilitates and assists with transferring domain names and can assist the parties in organising an arbitration where there is a dispute. There are also other ways that you might stop others from using your name, such as if another business is 'passing off' as your own.
Availability of Social Media and Website Domains
A key aspect of many businesses is their social media pages and website domains. These pages drive traffic and inform customers about their products. Therefore, if you wish to operate the business under a specific name, it is vital that you can also secure the desired domain and social media pages. Securing the same name across various platforms will provide consistency and instil confidence in your potential customers.
If none are available that are similar to your desired business name, consider changing it to have uniformity across your businesses channels. If your desired business uses common words, it will make it more difficult to obtain social media and other names. You should consider a more unique business name, which will also assist you when registering a trade mark.
Trade Marking
Registering a business name will prevent others from registering that same name but will not stop others from using that name. This is the case, even if they do not register it. In contrast, a registered trade mark gives you exclusive rights to use that trade mark in a specific industry.
To understand this, we need to understand the trade marking process. When you seek to register your trade mark, you apply in one or more 'classes'. These classes are related to specific business activities (i.e. gardening, fast food, automotive repairs etc.). The purpose is that there may be two of the same registered trade marks in very distinct classes. In such instance, it will describe your trade mark as it relates to your business activities.
You can register a trade mark for the business' name, logo, slogan or product name. Where a trade mark has been approved, if another business seeks to use a deceptively similar name, you can look to prevent them by issuing a cease and desist letter. This allows your business to prevent others from confusing customers about which products are associated with your brand.
Registering to the Correct Entity
Where you have a more complicated corporate structure, you must register the business name to the correct entity. An example is where you have a dual company or group of companies, some of which own or hold intellectual property and others that carry on the business's trading activities.
Under the Business Names Registration Act 2011, it is an offence to not have a registered business name with the entity carrying on the business unless it operates under the company name. If the name is not registered to the trading company, the trading company will breach the Act. Likewise, the holding company may open itself up to claims by customers as it may be deemed misleading. This would be a crucial mistake as the intention of a holding company is to isolate itself from the trading activity of the business.
Key Takeaways
Before you change your business name, it is essential to conduct searches of the relevant registers. This includes the business name register, trade mark register and confirming that social media and domain names are available. A business name serves as a badge of origin and can distinguish your business from other businesses. However, it does not provide any rights to prevent other businesses from using your name. A trade mark is the best way to obtain rights over your business name. It also opens avenues to prevent other businesses from using your name.
