Article by Daniel Arnephy CA

In the sixteenth century, William Shakespeare mused "that which we call a rose, by any other name would smell as sweet". Naturally the modern world of commerce has no room for such romantic notions. A business name is a crucial part of generating goodwill and building valuable brand identity and equity, so it's important to be on top of what you need to do to protect it.

SINGLE NATIONAL REGISTRATION AND PROTECTION

Registrations (and renewals) are handled by ASIC and businesses can now register their business name once nationally, rather than separately in each state or territory where their business operates. While this makes registration cheaper and easier, it carries the risk that someone operating in another state already has the name you want so you cannot register it. You can check business name availability on ASIC's website www.asic.gov.au.

MAINTAINING REGISTRATION IS CRUCIAL

Under the new system, there is also the risk that if your business name registration lapses or is cancelled, someone else can register it and take your business name. As things currently stand, if another business already has the same name as yours in another state/territory, they will also have the right to use it nationally so long as they maintain their registration. If your business name registration lapses in this circumstance, you will not be able to re-register it due to the operators in other states/territories.

RENEWAL PROCESS

A business name can only be renewed once ASIC has sent out a notice. During this transitional period, ASIC is allowing names to extend past their normal renewal dates without cancellation, however the name must be renewed once the notice is issued, otherwise it will lapse.

ASIC will provide 28 days notice of when a name is due to expire. They will not cancel any business names until the renewal payment due date has passed and will issue cancellation notices before cancelling a name.

It is important to check postal and email addresses with ASIC to ensure that renewal notices are going to the correct address.

BUSINESS NAMES - WHAT THEY CAN'T PROTECT

Business name registration does not necessarily bestow ownership of the name nor the exclusive right to use it.

It's important to note that registering a business name:

  • Does not stop another person from registering a similar name
  • Will not prevent the name being registered as a trademark
  • Will not prevent the name being used by someone that has already registered it as a trademark
  • Does not protect you from legal action if the name of your business infringes on the intellectual property rights of another (for example, a name which is a registered trademark)

Article by Daniel Arnephy CA, Accru Melbourne Chartered Accountants and Business Advisers.

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.