The new National Business Names Registration System
The new national regulatory and compliance business names system replaces the current State and Territory registers, often considered by Australian business owners as unnecessary red-tape and duplication. Existing business names will be transferred to a new national register managed by ASIC, effectively streamlining the old business name registration process. Renewal dates for existing business names remain the same.
A company does not need to register a business name if its company name and trading name are identical. However, when companies trade under a name that differs from their company name, trade using various business names, or as a trustee of a trust, then each business name must be registered.
There is no requirement to register a business name if it comprises a person’s own or his or her partners’ first name or surname.
It is a common misconception that registering a business name or incorporating a company with a certain name confers exclusive rights over the ownership and use of that name. However, only a registered trademark gives business owners that kind of protection. Registration of a business name simply prevents other traders from registering a similar or identical trading name.
Registering a business name that infringes other traders’ rights can give rise to legal action. The most common forms of legal action are for misleading and deceptive conduct, passing off, or trademark infringement.
Legal action may result in a trader being required to re-brand or pay damages to the aggrieved party. To minimise the risk of infringing any existing legal rights regarding a proposed business name, applicants are encouraged to first search IP Australia’s ATMOSS trademark database – notably, during the business name registration process applicants are required to undertake to ASIC that their proposed business name does not infringe the pre-existing rights of other traders in a relevant market.
Traders can ensure they have the exclusive right to use their business name throughout Australia by applying for a registered trademark under the Trade Marks Act 1995. A registered trademark gives the trademark owner the exclusive legal right to use, license and sell that intellectual property asset. You can find out more about the benefits of trademarks registration here.
Trademark registration lasts for ten years and can be renewed indefinitely in ten year increments providing that renewal fees are paid to IP Australia. It is worth noting that not all business names are capable of being registered as trademarks – all trademarks (including business names) must first satisfy the requirements of the Trade Marks Act 1995 before they can be registered.
If you are a new or existing business operator and require exclusive use of your business name we recommend that you should apply for trademark registration. Stone Lawyers can assist you in that process.