Previous State-based system
A registered business name is legally required if you are trading under a name other than your own or your registered company name. Under the old system, registration was compulsory in each state and territory where a trader did business and the registration had to be completed prior to the commencement of business in that state or territory. The period of registration and the fees payable varied depending on the particular state or territory.
New national system
A national registration system, administered by the Australian Securities and Investments Commission (ASIC), commenced on 28 May 2012. This new system streamlines the business name registration process.
Key features of the new system include:
- Business names are now registered nationally, rather than in each state and territory;
- Businesses can submit applications at any time via an online system and receive instant confirmation;
- Lower registration and renewal fees; and
- Business must have an ABN, or be in the process of applying for an ABN, when filing an application for registration of a business name.
Do you currently have a registered business name?
Current business name registrations will be automatically transferred to the new national system at no cost. These registrations will still need to be renewed when the original registration period expires; however the renewal will take place under the new system.
If you currently have business name registrations in multiple states, all of these business names will be registered on the national system. You can choose to maintain one of the registrations and let the duplicate names expire, or you can cancel redundant registrations.
ASIC will allow identical or nearly identical business names to co-exist on the national register, provided they are being rolled over from the existing Registers. In this case, ASIC may insert a distinguishing mark or expression on the Register, for example (QLD). This distinguishing mark or expression will not form part of the business name itself.
Business names and trade marks
Many traders believe that a registered business name provides ownership rights to the name. This is incorrect. A registered business name does not provide any proprietary rights to the name. Only a registered trade mark offers such protection.
A registered trade mark gives you the exclusive right to use the trade mark in Australia. However, the mere existence of your registered trademark does not prevent another party registering the same or similar words as a business name, as ASIC does not perform cross-checks with the Australian Trade Marks Database. In the event that another party adopts a business name that is similar to your registered trade mark and uses that name in relation to similar goods or services to those covered by your trade mark registration, you may be able to take legal action for trade mark infringement.
This is an important factor to bear in mind when choosing a business name. Business owners need to be aware that they may be infringing a registered trade mark by adopting a particular business name. In order to prevent such a situation, we recommend searching the Australian Trade Marks Database prior to adopting a business name or trade mark.
If you have any questions regarding this article, or wish to enquire about business name registration, trade mark applications, or searching the Australian Trade Marks Database, please contact pthompson@fak.com.au or T +61 7 3229 2655.