Contributions for this article were also received from Shehana Wijesena.

Key points

  • The Australian Government has announced details of a new scheme, to be administered by the Australian Securities and Investments Commission (ASIC) and proposed to commence in April 2011, which will enable the national registration of Australian Business Numbers (ABNs) and business names.
  • All state and territory business names will be transferred into the new system. This will simplify complying with the obligations to register business names.
  • Registration of a business name is necessary to comply with statutory obligations but does not give the business name owner any property rights in the name.
  • Traders seeking a national monopoly in a name or brand which they use in relation to the goods or services they provide should obtain trade mark registration.
  • It is also the responsibility of a business to make sure its business name does not infringe on the registered rights of trade marks owners.

The new system

In response to a regulatory reform identified by the Council of Australian Governments, the Australian Government will be investing A$125.2 million during the next 4 years into a national ABN and business name registration system, to be administered by the Australian Securities and Investments Commission (ASIC).

Currently, where a business trades in more than one state or territory, it must register a business name under the laws of each one.

Under the new system, businesses can register once and pay a one-off fee to have its business name registered nationally.

Business names registered under the current system will be automatically transferred into the new system.

Obtaining a monopoly in a name or brand

Businesses should be aware that registration of a business name does not give it any property rights in the business name. The registration of a business name does not give the owner any 'trade mark rights' – the best way to shore up 'brand rights' is trade mark registration.

To ensure that they have a national monopoly in the name or brand it uses in relation to the goods and/or services it provides, businesses should not rely only on this registration but also obtain trade mark registration of that name or brand.

This is particularly important given the ease with which the new system will allow businesses to register and use business names nationally. The statutory rights granted by trade mark registration can be enforced against a competing business which uses a name or brand that is substantially identical or deceptively similar to the registered trade mark in relation to goods or services similar to those covered by the trade mark registration.

Conversely, businesses should ensure that their business name does not infringe the rights of trade mark owners both here in Australia and, if the business exports and/or has an online presence, internationally.

We can advise you on

  • the impact of this new system on your business; and
  • your overall branding strategy, in particular how to strengthen and develop your trade mark rights by registration and/or how to avoid potential claims of trade mark infringement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.