The Business Names Registration Act 2011
(Act) has been passed by the Commonwealth
Parliament. The Act introduces a new national business names
register, replacing the previous system that required business
names to be registered in each state and territory.
This new system is expected to commence in the first half of
2012, however this is dependent upon each state and territory
passing legislation to refer their business name registration
powers to the Commonwealth. At present, New South Wales,
Queensland, Tasmania and the Northern Territory have passed the
relevant referral legislation, while Victoria, South Australia and
the Australian Capital Territory all have bills pending.
New system
The Australian Securities and Investments Commission
(ASIC) will be responsible for the administration
and management of the new system.
The new system provides for:
- lower registration fees - $30 to register a new business name
Australia-wide for a one-year period and $70 for a three-year
period;
- all hours access - businesses can apply 24 hours per day, 7
days per week to register national business names;
- simultaneous registration of Australian Business Numbers
(ABN);
- immediate confirmation or rejection of registrations (in most
cases);
- appeal rights - ASIC decisions may be reviewed on application
to the Administrative Appeals Tribunal; and
- free searches - the public will be able to conduct free
searches of ASIC's online database to ascertain details about a
business name holder.
If a business has a registered business name
All business names currently registered under either state or
territory systems will be gradually transferred to the national
business name register on commencement of the national system.
For identical or nearly identical business names, ASIC may
insert a distinguishing mark or sign on the register. The business
name itself will not include this distinguishing mark/sign and
therefore businesses will not need to change their stationery
and/or signage.
A new business name will not be available if it clashes with a
registered business name or with the combination of business name
plus the distinguishing mark/sign.
If a business needs to register a business name
Not registering a business name will be an offence if an entity
carries on a business in Australia under an unregistered business
name. To register under the new system, the business must have an
ABN or at least have applied for an ABN.
A name will not be registered if it is inappropriate or likely
to offend, mislead or deceive consumers and traders.
The difference between trade marks, domain names and
business/company names
Registration of a business name, company name or a domain name
does not in itself give any proprietary rights - only a trade mark
can give that type of protection. It is the responsibility of the
business to ensure their business name does not infringe on the
rights of trade marks both in Australia and
internationally.
Authored by Madeline Brennan, Cornwall
Stodart