Names Register (the Register) on 28 May 2012 business name holders and those applying for business The Business Names Registration Act 2011 (Cth)
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Names Register (the Register) on 28 May 2012 business name holders and those applying for business The Business Names Registration Act 2011 (Cth)
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© Carter Newell 2012 www.carternewell. com
By Tony Stumm, Partner and
Jordan Bird, Solicitor
Understanding the new Australian Business Names RegimeThe commencement of a national Business
Names Register (the Register) on 28 May 2012
is a common sense step forward in providing business name holders and those applying for business names with one national business names register. The Register also provides increased consumer protection by easing the means by which consumers can identify entities carrying on a business under a registered business name.Snap shot
The Business Names Registration Act 2011 (Cth)
(the Act) has the express intent of ensuring identification of entities conducting business under a business name and creating a convenient, nationwide register to replace the independent State and Territory registers (thereby reducing compliance costs arising from operating across multiple jurisdictions). 1Under the new Act, business name holders can
also enjoy a sense of certainty in the sole use of their business name as the Act provides for greater regulation of the registration of business names through a right to refuse registration of particular names.2 Where a proposed business
name is very near or identical to a registered business name, the proposed name registration will not occur until the proposed name is altered so as to avoid confusion.However, business name holders should be
aware that registering a business name will not by itself create or grant any proprietary rights in that business name.3 While the Register will not
allow registration of identical business names, business name holders seeking to protect any intellectual property rights should do so through trade mark registration.Business name holders should also educate
themselves of their obligations under the Act with regards to the use and display of their business name. The Act identifies actions which carry a monetary fine as a penalty, including: carrying on a business under an unregistered business name; failing to display the business name at places where the business is open to the public; andfailing to include information connected with the business name in written business communications.
41 Business Names Registration Act 2011 (Cth) s 16.
2 Ibid ss 16(3) & 25.
3 Ibid s 17.
4 Ibid Part 2.
Pursuant to the Act,5 the Australian Securities and Investments Commission (ASIC) now maintains the Register and provides through its website, an entirely online process allowing for all registrations, renewals, maintenance and searches to be conducted.Registering a business name
To register a new business name, entities are required to lodge an application with ASIC, providing details as required under the Act, including:
the entity's ABN; the principal place of business; an Australian address to allow for the service of documents; and the proposed business name.6 Applicants will also be required to nominate a registration period for the business name of either one or three years. A one year registration period costs $30 while a three year registration period costs $70.For those entities who have registered business
names prior to the commencement of the Act, these names have been brought across to the new Register under the already registered names. Entities with business names registered in various States prior to the introduction of theAct may note the Register contains each
registered name with an identifier as to the State or Territory in which the name was originally registered. In these cases, business name holders may simply forego renewing all but one registered name in order to still receive national protection of that business name granted by theRegister.
Cancelling a registered business name
Should any business name holder wish to cancel a name they hold on the Register, they can do so by notifying ASIC through an electronic request located on ASIC's website. ASIC will generally provide 28 days notice to the business name holder and to any representatives recorded in the Register prior to cancelling a registered name, as to reduce the risk of allowing any unauthorised cancellations of the business name.
5 Ibid s 22.
6 Ibid s 23(2).
The Act further grants ASIC authority to cancel the registration of business names in a number of circumstances, including: where the business name holder is not carrying on a business under the registered business name; where the business name holder ceases to exist; or where the business name holder fails to provide information to ASIC when required.7Notification requirements
The Act places an obligation on business name holders to provide ASIC with information upon the occurrence of various events throughout the registration of the business name.8 For example, notifying ASIC of any
changes to information previously provided by business name holders in relation to a business name in the Register or notifying ASIC of an event of insolvency or disqualification. Failure by a business name holder to comply with the notification requirements established under the Act may result in a monetary fine.What this means for you
Where business name holders have a name registered prior to the commencement of the Register, no action is
required due to the automatic transfer of those business names to the Register. The renewal dates of these names similarly remain unchanged. Entities wishing to register and trade under a new business name following the introduction of the Register will need to lodge an application through ASIC. It is suggested that before registering a new business name, a search is undertaken of the trade marks register so that another entity's trade mark is not unwittingly infringed by the new business name.