Clifford Gouldson Lawyers

Business Names - Finally a One Stop Shop

Print Version

1/05/2012

For years our clients have been frustrated at having to maintain registrations of their business name across multiple jurisdictions. That frustration will end on 28 May 2012 when a new National Business Names Register (the National Register), managed by ASIC, commences. So, come 28 May 2012 the current state and territory business names services will be replaced by a one stop shop - the National Register. Registrations will then apply throughout Australia.

WHAT ARE THE BENEFITS OF HAVING A NATIONAL REGISTER?

Compared to the previous regime, it will be significantly cheaper to register a business name. Previously a business operating in every State and Territory may have paid fees in excess of $1,000 for three years registration – under the new system, the same business can register their business name nationally for a cost of $30 for one year or $70 for three years.

By conducting a free search of the new National Register, consumers will be able to obtain more information than was previously available, including the name of the business name holder and ABN. This information was previously only available if the searcher purchased a business name extract. In cases where a business name has been cancelled, the free search will also show whether the cancellation is under review.

ASIC is also implementing a new online name-availability tool, to allow you to determine whether a particular business name is available for registration. When you use the tool to check the availability of a business name, you will receive one of four results:

  1. Green – the name is available for registration;
  2. Amber – the name may not be available as it has not satisfied all 14 name availability tests. If you would like to register the name, you will need to complete your registration application and it will be referred for review to a staff member;
  3. Red – the name is not available for registration. You will be advised of the reasons the name is unavailable; or
  4. Amber (transfer) – the name is held for transfer from the current holder to a new holder.

These features of the new National Register will make information relating to business names considerably more accessible to consumers and should simplify the process involved in registering a new business name.

WHAT WILL HAPPEN TO EXISTING BUSINESS NAME REGISTRATIONS?

For peace of mind, existing Business Name registrations will automatically be transferred to the new National Register – you do not need to do anything to effect the transfer. If your business name is registered in more than one State or Territory, and ASIC is able to reliably determine that you are the holder of identical business names in different States (for example, if every business name is registered to your address), ASIC may contact you to consolidate the registrations into the one national registration. Alternatively, you can choose to cancel all of the registrations but one (there is no fee to cancel a business name).

If you have multiple principal places of business across Australia, ASIC will notify you of which address it intends to use as the principal place of business for sending documents. You may nominate an alternative address for service after the new system has commenced.

As you will only need to pay one renewal fee for the name to be registered nationally under the new system, your renewal will fall due on the last date of expiration on any of your previous Statebased business name registrations. You will also be able to align the renewal dates for the registrations of different business names and your registered company (if applicable), so that all registrations are renewed on the same date.

WHAT WILL HAPPEN IF SOMEONE CURRENTLY USES AN IDENTICAL BUSINESS NAME TO MINE IN A DIFFERENT STATE OR TERRITORY?

If someone in another State or Territory has registered an identical business name to yours, ASIC will add a geographical identifier (in the form of a distinguishing word or expression) on the public register to assist the public to differentiate between your business and theirs. This additional information will not form part of your business name.

WHAT SHOULD I DO IF I WANT TO REGISTER A NEW BUSINESS NAME OR MONITOR MY EXISTING BUSINESS NAME/S?

Both new and existing business name holders should set up an ASIC Connect account to enable you to register national business names, maintain and renew your current registrations and update your contact details. To set up an ASIC Connect account, visit the ASIC website - www.asic.gov.au.

Once you have set up your ASIC Connect account, if you are a new business name applicant, you will be able to apply for a business name and an Australian Business Number (ABN) (if you don’t already have one) simultaneously. If you are an existing business name holder you will then be able to ‘link’ your existing business name/s to your account.

ONCE I HAVE REGISTERED MY BUSINESS NAME, DOES THAT MEAN THAT I OWN IT?

No, just like under the previous State and Territory system of registers, registering your business names on the new National Register does not give you a proprietary right in that name and it does not give you the exclusive right to use that name. Registration allows you to use the wording of your business name as an identifier unless someone registers it as a trade mark. Ownership of a business name can only be obtained by registering it as a trade mark. The new online application service includes links to allow you to search Australian trade marks and domain names, to assist you in determining whether your proposed business name would contravene the existing rights of others.

WHAT SHOULD I DO NOW?

If you are an existing holder of a business name, you should set up an ASIC Connect account and link your business name/s to your account.

For more information regarding the new National Register and how to register a business name, you can consult the ASIC Regulatory Guide 235: Registering your Business Name, available from the ASIC website - www.asic.gov.au.

If you have any questions in relation to this bulletin or if you would like further information regarding trade marking your business name or in relation to the structuring of your business generally, please do not hesitate to contact our Business or Intellectual Property Teams.

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