By Clare Gregory, Solicitor at Australian Government Solicitors
On 28 May 2012, a single national register of business names commenced, replacing the former State and Territory registers. The national business names register is administered by ASIC and makes publicly available the identity of the person or entity carrying on business under a business name and contact details for the person or entity.
Since the register commenced on 28 May 2012, ASIC has received approximately 149,000 business name registration applications, and as at late November to early December, was receiving approximately 5,500 applications per week. In the time since 28 May 2012, there have been a total of approximately 3,900,000 business name searches undertaken on the website. The register and website have been developed and adjusted during this period, with business name renewals being sent out from October of this year.
What’s in a name?
A “business name” is the name under which a person or entity conducts a business. Registering your business name with ASIC may be helpful in establishing the reputation or connection between a name used and a particular business. If you operate a business under a name other than your own name, or if you are a company operating under a name other than the company name, you must register the name used as a business name.
You may also need to register a business name if you cannot use your real name to identify your work or performance because someone else has already established a reputation in the same name, and use by you of your real name would be likely to mislead or deceive the public or incorrectly suggest a connection between you and the other person.
In addition, most banks will not open an account for a group of people unless they have a registered business name.
There are certain circumstances in which you are exempt from registering a business name. For an individual, you are not required to register a business name if the name of your business is your full individual name – first name and surname. For a partnership, you are not required to register a business name if the name of your business consists of the names of all of the partners. For a registered company, you are not required to register a business name if the name of the business is the company’s registered name.
Registering a business name, however, does not grant ownership of the name or give you the exclusive right to use the name. It does not confer any other rights in the name. The best way to protect a name in this way is to also register it as a trade mark.
How to register your business name
The national register has made the procedure for registering a business name simpler and more affordable. This is particularly so for businesses operating in a number of States and Territories, which were previously required to register separately in each State and Territory in which they operated. Registering a business name on the national register is available for a one year or three year period. The fee for registration for one year is $30, and for three years is $70.
Applications to register a business name can be completed online via the ASIC Connect website. You will need to create an ASIC Connect account first in order to make an application. Also, if you are an individual or organisation with an Australian company number or Australian registered body number, you can also register for a business name as part of an online Australian Business Number (ABN) application on the Australian Business Register (ABR) website. These are the steps involved in registering a business name:
Obtain an ABN, or have lodged an application for an ABN and have an ABN application reference number. An application for an ABN can be made online on the Australian Business Register website;
Provide the proposed business name you would like to register – you can check the availability of a business name on the ASIC Connect website prior to, or during, the registration process;
Provide details of the business name holder. The information required will vary slightly depending on whether the business name holder is an individual such as a sole trader, an incorporated entity, an unincorporated entity, or a partnership or joint venture partnership. Individuals are required to provide their name, date of birth, and residential address. The date of birth and residential address are not published on the website.
Provide address information for the business, which should be the primary place where the business is carried on and the address for service of documents. For individuals, where the address is the same as their residential address, ASIC should not display this information on the public register, but will display the suburb and postcode in which the business is located.
Declare you are eligible to hold a business name (you would be disqualified from holding a business name if you or a person involved in managing your entity are disqualified from managing a corporation or were convicted of an offence involving dishonesty and punishable by imprisonment of at least three months).
In order to ensure that your proposed business name does not infringe someone else’s trademark, you should also undertake checks on the name, in particular, via the IP Australia Trademark search. You should also check whether your proposed business name or a similar name is being used by another person or entity – if it is, this may expose you to a risk of legal action as this might be misleading. This can be checked by a search of the ASIC Connect register.
Searching the register
The business names register is publicly searchable free of charge. Typically, a free search will retrieve information such as the organisation name, unique identification number such as ABN, type of company, registration date and next review date. Additional information can be searched for by paying a fee, such as current and historical extracts, and a copy of the certificate showing details of a corporation’s registration. However, to determine whether a business name has already been registered and is unavailable, a free search will provide all the information required.
For more information –
ASIC Connect is ASIC’s portal for, among other things, registering business names. The website is www.asicconnect.gov.au.
The ASIC website also provides a lot of information on registering business names. The website is www.asic.gov.au
The Business Entry Point is a Federal Government website designed to assist businesses including registration for Australian Business Numbers (ABNs). Their website www.business.gov.auprovides information and searches of their databases.
The Australian Business Register is responsible for ABN registration. Further information on ABN registration as well as online registration can be found on their website, www.abr.gov.au. The Australian Business Register can also be contacted by phone on 13 28 66.