On Friday 25 May, all existing business name registers in each state closed down and the information was transferred to the register of the Australian Securities and Investments Commission (ASIC).
The Business Names Registration Act 2011 (Cth) then came into force on 28 May 2012.
From this date, ASIC has governed the registration of business names throughout Australia and there are several key issues to be aware of under this new system.
Features of the new system
Under the new system:
- business names are registered by ASIC;
- businesses can apply for a business name online and receive immediate confirmation;
- a business name only needs to be registered in the one place and it will operate Australia-wide;
- the registration fees are largely reduced, at $30 for 1 year or $70 for 3 years;
- the process of incorporating a company and registering a business name will be streamlined; and
- links with the IP Australia database will allow businesses to check if someone else is currently using a similar or identical business name as a trade mark.
As a new requirement, to apply for a business name you must have, or be in the process of applying for, an Australian Business Number (ABN).
Some traps and pitfalls
Importantly, a business name will still not give its owner protection in respect of their intellectual property and goodwill. This remains unchanged from the position under the previous state-based laws.
While the national system should reduce compliance costs, it also means that business names that are registered by different owners between states will operate concurrently.
This may pose problems for businesses in respect of their existing intellectual property and goodwill.
If there are similar or identical business names registered due to the consolidation of the state registration systems, ASIC will add a state identifier to the end of the conflicting business names that will only appear on ASIC’s records. Business name owners will not need to display the identifier; however they will not be able to stop another business from using a conflicting business name if it was registered prior to 28 May.
The best way to protect intellectual property rights is still to register a trade mark.
What do you do now?
You can contact any member of our corporate and commercial team on 3231 2444 to discuss:
- how the changes will impact your business; and
- how to register a trade mark.