National Business Names Changes

by Andrew Nicholson, Partner, Mullins Lawyers

From 28 May 2012, businesses will no longer need to undertake the task of registering a business name in a number of States/ Territories. Under the new system, the Australian Securities and Investments Commission (ASIC) will also maintain a national business names register.

Both company and business names will then be administered by ASIC, Australia wide. Existing business names will be transferred to the new register, with the same renewal date. We suggest that you review the register to ensure that your details have been correctly recorded.

Registering New Names

There are a number of changes to the registration process and it will be necessary to pass a number of criteria before the name is accepted. The online process will also contain links to the trademarks database and the domain name registry, the importance of which is discussed below.

What is the Risk?

Registering a business name is all about compliance and it is required if you are using a trading name other than your own. However, registering a business name will not give you ownership of, or any proprietary rights in, the name. Rather, business name registration merely prevents others from registering an identical or similar name. It is a common misconception that registering a company or business name conveys ownership or an exclusive right to use. That is not the case. The only way to obtain those rights is through trademark registration.

Put simply, the risk is:

If you register a business name (or adopt a name/brand) which infringes the rights of others (commonly through trademark infringement, misleading or deceptive conduct or passing off) then you may find yourself the subject of legal action. The consequences may include one or more of having to rebrand, shutting down while you do so, facing embarrassment with clients/customers and having to pay damages to the other party.

The online system now indicates that applicants should search the trademarks database (to consider whether they are infringing any earlier marks). There are a number of tricks for young players and professional advice should be sought prior to spending time, effort and money in the development of a new name.

You should consider whether it is possible to protect your name through trademark registration, which provides an exclusive right to use the name in relation to your goods and services. Existing businesses should also take care when adopting names for new products or service lines.

Undertaking the necessary searches and protecting your name/brand through trademark registration is relatively inexpensive. Preferably this work should be undertaken prior to using the name or as soon as your new name/ brand and/or logo has been developed.


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