National business names legislation has been passed by the Commonwealth Parliament, providing for a new national business names registration scheme by establishing a new national business names register. Previously, business names were registered in each State and Territory a business conducted its activities in.
The purpose of the Act is to adopt the Business Names Registration Act 2011 and the Business Names Registration (Transitional and Consequential Provisions) Act 2011 and to refer certain matters regarding the registration and use of business names to the Commonwealth Parliament.
The Business Names (Commonwealth Powers) Act 2011 repeals the Business Names Act 1962 (Vic), and amends Victorian laws relating to business names. This was effected via the referral of constitutional powers from the states and territories to the Commonwealth.
The initiative is intended to lower the cost of businesses applying for business names, save time and reduce red tape associated with the costs of registration. Businesses will no longer have to register their business name in every State and Territory they want to trade in.
Businesses will be able to apply to register a national business name on the internet and receive online confirmation of registration immediately in most cases through ASIC, which will be the body responsible for the administration and management of the new regime.
The rationalistion of business registration services means less processes and fees for businesses registering and operating their business names under different state systems through the website www.abr.gov.au at a cost of $30 to register a new business name Australia wide for a period of three years, or $70 for a three year period.
As previously discussed, there is a difference between trade marks, domain names and business/company names, in terms of the rights acquired by the registrant in each case. Business owners should always conduct trademark searches and domain name searches prior to registering their business names, otherwise this could lead to domain name disputes. There will be information on trade marks and domain names available to registrants, together with links to an enhanced Australian Trade Mark Search (TM Check) and domain name searches. This is intended to benefit businesses deciding to select a business name, leading to greater certainty.
Any business that does not operate under its own individual name, partnership name or corporate name must register its name and contact details with the national Register, the purpose of which is to allow consumers and other businesses to ascertain the identity of an entity which is behind a particular business name and obtain contact details.
However home-based will not have their full address displayed on the service. These businesses will only have their suburb and State or Territory displayed on the online national business register. It will also be open for businesses to seek to have certain publicly available details suppressed upon application to ASIC.
If you operate a business with an existing ABN you will register your business name on the ASIC website at www.asic.gov.au which will be responsible for issuing business renewal reminders. ASIC already assumes responsibility for the registration of corporations. However registration of ABNs for existing businesses will remain free and existing businesses will still be able to renew their business name without an ABN.
The gradual transfer of the registration of existing business names in states and territories to the Commonwealth register will likely result in identical business names being registered by different owners in different jurisdictions.
In respect of identical business names, ASIC are able to incorporate a distinguishing word mark or sign on the Register so businesses won’t need to concern themselves with making changes to their stationery and/or signage.
The system is designed to introduce more certainty, as any new business names proposed to be registered which are identical or substantially identical to names already appearing on the Register will no longer be available for registration. Similar restrictions as to what types of company and business names are registrable will continue to apply. A business name won’t be able to be registered if it is inappropriate, likely to offend, mislead or deceive consumers and/or businesses.
The registration and processing of business names through the national business names register will be achieved through an online automated test which will determine registrable names.
Access to the national business name regime will be made available through a range of services nationally including the Australian Taxation Office, ASIC, select State agency offices. Small business and business enterprise centres will offer information about the logistics and locations of the online business name service in addition to being able to provide other business licensing services. An Australian Business Licence Information Service will be available for licensing purposes.
Certain entities such as limited partnerships and associations and licensing and professional registration will continue to be administered predominantly by States and Territories.