The Business Names Registration Act 2011(Cth) has been passed by the Commonwealth Parliament. The Act will generally make it mandatory for a person carrying on a business in Australia under a business name to register the business name with ASIC and replaces the current state and territory business name registration systems. Subject to the passage of complementary legislation in the Northern Territory and Western Australia the National Business Names registration system will commence on 28 May 2012.
The Business Name Register
ASIC will be responsible for registering, renewing and administering business names for all Australian businesses under the Business Names Registration Act 2011 (Cth). ASIC will maintain the Business Names Register, which will be available online.
Through the register, it will be possible to:
- determine if a business name is available
- register and renew a business name
- make changes to details relating to your business name.
What do I need to do?
Automatic transfer of existing business names
Business names registered with a state or territory on 28 May 2012 will be automatically transferred to the business name register.
Note that ASIC will send notifications to the address for service of documents (based on the information transferred from the state or territory business name system).
Your details should be verified with ASIC once the system is in operation.
Where different persons have registered identical business names in different states and Territories prior to 28 May 2012 both of them will be registered for the same business name by ASIC under the new national system. However ASIC may insert a distinguishing mark or expression on the register to differentiate the registered holders of the two names. The businesses will not need to note the ASIC assigned distinguishing mark or expression in their names.
Business names that expire before 28 May 2012
If you wish to continue to carry on business under your existing business name and that name is registered but expires in a state or territory before 28 May 2012, you will still need to renew the business name registration and pay your fee to the state or territory under that state or territory business name system.
Business names that expire after 28 May 2012
Once the new register has commenced, ASIC should provide notifications in advance of your business name registration expiring. You should however continue to actively monitor your business names through the transition period in relation to their expiry dates, to ensure they do not inadvertently expire.
If your renewal falls due on or around 28 May 2012, ASIC may send you the renewal notice after the date the business name expires.
Registration of new names
Until the new system commences, the current process for registering a new business name in a state or territory will continue to apply.
Once it commences new business names will need to be registered with ASIC. New businesses will need to have an ABN in order to register a business name. This will be linked together in the registration process.
New business names will not be available for registration if already registered by someone else.
Why Register a Business Name?
It will be mandatory to register a business name under which a business trades in Australia.
Registration of a business name does not, however, bestow property rights or a monopoly right on the registered business name owner to use that name. Monopoly rights can be secured by registering the name as a trade mark in accordance with the Trade Marks Act 1995 (Cth). Trade mark registration is a totally separate process.
As with current business names registrations the business will need to ensure that the business name registered does not infringe on the rights in trade marks or names used by others.
Progress in each state and territory
|ACT, NSW, Qld, SA, TAS, VIC
||Complementary legislation has been enacted.|
||The Business Names (National Uniform Legislation) Request Act 2011 (NT) has been enacted and outlines a request to the Parliament of the Commonwealth to enact legislation relating to the registration of business names.|
The Business Names (National Uniform Legislation) Implementation Bill 2012 (NT) was read in the Northern Territory Legislative Assembly for a second time on 22 February 2012. It is scheduled for further consideration by the Legislative Assembly on 27 March 2012.
||The Business Names (Commonwealth Powers) Bill 2011 (WA) 22 March 2012 is before the Legislative Council. It has yet to be brought before the Legislative Assembly.|
Need to know more?
After commencement of the new system, Phipson Corporate Services (a division of Minter Ellison) will continue to provide business name registration services as well as an address for service of notices for business name registrations.