Under current law, business name registrations are dealt with at State level. From 28 May 2012, a new National Business Names Register (NBNR) was established, which is administered by the Australian Securities and Investments Commission (ASIC).
Current Business Names
The change will not affect existing registered business names.
Existing business names will automatically be transferred to the new national register and retain their existing expiry dates (i.e. in South Australia, 3 years from registration).
If a renewal is required before the transition date (May 28), this will be dealt with by the relevant state-based agency and, once renewed, the name will be transferred to the NBNR.
After the Transition
Once ASIC takes control of the registration of business names, it will have an online service available for applications, renewals and payments.
After the transition, business name registration will apply nationally. This means that for a business operating across state borders, there will no longer be a need to register the same name in multiple states.
If, under current laws, a person has registered the same business name in a number of states, then following the transition they may choose to:
- keep only one business name record (e.g. the business name with the latest registration expiry date) and cancel the registration of the remaining business names; or
- leave all business names in place and simply choose not to renew the excess business names as their registration period expires.
Where ASIC identifies a party as being the holder of a number of identical business names following the transition, it may combine these into a single entry in the NBNR which will expire on the last date of expiry of all combined entries.
What if the same business name is registered in different states by different parties?
If there are similar or identical names already registered in different states by different parties, ASIC will take one of the following steps:
- Additional information may be provided on the register – such as the state or territory in which the business name was first registered or the business name registration number.
- If ASIC considers that the above step is not sufficient, it may add a distinguishing word as an identifier – this will not form part of the business name, but is used to allow people to distinguish between identical business names on the public register. ASIC will notify the business name holder that it intends to use the name of the suburb or city in which the business name is registered as the identifier. The holder may nominate an alternative identifier, which will generally be adopted unless it:
- does not actually result in the name being distinguished from the other identical business name (e.g. the distinguisher is a word already used in the other identical business name);
- is offensive;
- is made up of, or includes, a ‘restricted word or expression’ (e.g. the words ‘Commonwealth’ or ‘Federal’); or
- suggests a connection with the Commonwealth, state or local government, or a department, instrumentality or authority of a government where no such connection exists.
What information will be available on the NBNR?
One of the purposes of the NBNR is to ensure that, if an entity carries on a business under a business name, the entity can be identified by the public. As such, contact details will be available via the public register located on ASIC’s website.
The contact details that will be publicly available (through a paid extract) include the entity’s address for service and principal place of business. If the business name holder is an individual, their date of birth, place of birth and residential address will not be disclosed (unless the residential address is the same as the principal place of business, in which case the extract will disclose the suburb, postcode and state or territory).
Businesses will be able to choose to register their business name nationally at a cost of $35 for one year or $82 for three years.
This is a reduction in fees in most States – for example, the current fee to register a business name in South Australia for three years is $159. There is also a saving for those entities that have previously registered their name in multiple States.
Protecting your brand
Your business name is an important part of your brand. You should also consider whether to trade mark your name or your logo. A registered trade mark provides you with proprietary rights in the name, meaning you can require others to change their identical or similar trading names. You do not get this level of protection with a business name or company name alone.
Call Louise Russo on 1300 654 590 if you would like assistance to prepare for the business name changes, or advice about registering your trading name as a trade mark.