New legislation is proposed to dramatically overhaul the process by which business names can be registered.
Currently, business names are required to be registered in each State or Territory in which the business is carried on. However, the proposed legislation is expected to replace this system by mid-2012 with a new national system to be operated and maintained by the Australian Securities and Investments Commission (ASIC).
Under each of the State and Territory systems, and the proposed national system, what constitutes the carrying on of a business is very widely defined and is taken to include anything in the course of the commencement or termination of the business (such as establishing a place of business and soliciting or procuring any order from a person).
Key changes
- The proposed national system will replace the individual State and Territory regimes, meaning business names will only be registered on the one national database, with businesses no longer needing to register in each State or Territory they trade in.
- The period of business name registration will now be either one or three years.
Businesses will be able to apply to register a national business name online and receive instantaneous confirmation of their registration.
- New businesses will need to have an Australian Business Number (ABN) or be in the process of applying for an ABN and not have been refused an ABN in order to register a business name.
- Registration for an ABN will also be completed through the same site and links will be provided to conduct trade mark and domain name searches.
- Businesses will be required to include its business name and, where applicable, ABN, on all external written communications.
- Any decision by ASIC whether or not to register a business name will be reviewable on application to ASIC or the Australian Administrative Appeals Tribunal by the applicant or any person in relation to whom there is a real risk of substantial detriment because of the registration of the business name.
What does this mean for your business?
If you operate a business within Australia under a name which is different to your personal name or company name it will be an offence not to have registered that name as a business name.
If you already have a registered business name under a State or Territory regime, this name will be automatically rolled into the new national system upon its commencement (You can review your details online with
ASIC).
Likewise, if a business name is registered in several States or Territories, these names will be consolidated into one registration to be recorded on the national register.
If your registration is due for renewal before the start of the new provisions, it must be renewed through your relevant State or Territory body. If renewal is due after the start of the new provisions, renewal should be made through the ASIC administered national register by paying the applicable renewal fee.
For those who do not have a registered business name, on commencement of the new system businesses will need to register for an ABN and a national business name through the one site with
Australian Business Registry. Registration can also be made by post or in person. Registration of a new business name, or renewal of an existing name, will cost $30 for a one year period or $70 for three years whilst registration of an ABN will continue to be free.
It is important to note that, as with the current business name registration system, it is proposed that registration on the national register will not provide the registrant with a proprietary interest in the business name. Registrants would therefore need to seek trade mark registration if they wish to exert ownership rights over the name, as is currently the case.
Hall & Wilcox's Commercial and
Intellectual Property teams are well placed to assist businesses with all aspects of business name and trade mark registration.
For further information, please contact: