National Business Names Register Commenced 28 May 2012

The ASIC National Business Names Register commenced operation on 28 May 2012. The main difference in the new system is that you will only need to register a business name once for national effect. The system aims to provide simpler search facilities for customers in order to make it easier to identify the party behind the business name.

Details for current or future business name holders:

Registering a new business name:

Registration will occur through the ASIC website which includes the business names search facilities and payment functions required to execute the registration. A fundamental change in the registration process will be that an applicant must hold an ABN in order to register a business name; this is now a legal requirement.

Existing business name holders:

Existing business name holders are not required to do anything to have their registrations migrated to the new system. This will occur automatically. Business name holders can check their registration on the new system from 28 May 2012 when the system comes online.

Renewal of business names:

ASIC will issue renewal of business name notices in accordance with the time remaining on the original state based registration. As the ASIC system will not gain the ability to process renewals until July 2012, renewals for registration due on or after 28 May 2012 will not be issued until July 2012. ASIC will extend the renewal period accordingly and will not cancel the business name until the extended due date as provided in the notice.

Multiple Business names (same owner):

If you hold identical names in different states, all of the identical names will be automatically transferred to the new register, but you will only be required to maintain one name for it to have national effect.

Identical business names:

Where the same business name has been registered in multiple states by different users, all of those business names will be migrated to the national register. In order to distinguish between the identical business names on the register, an identifier will be added to the business name. The identifier does not form part of the business name, rather it is for identification purposes only. Examples of what may be used as an identifier includes: the state or territory in which the business name was originally registered or the state or territory business name number. ASIC will notify you if they propose to attach an identifier to your business name.

Frequently Asked Questions:

Do I need to register a business name?

You are required to register a business name if you carry on a business within Australia. However you are exempt from the requirement to register if:

• the business is an individual and the business name is that person’s name;
• a registered company and the business name is the company’s name; or
• a partnership and the business name consists of all the partners’ names.

Does registration of a Business Name give me the right to use that name and to prevent others from using that name?

It does not.  The purpose of Business Name registration is as a consumer protection measure that may be used to help identify the person carrying on business under that name.

Registration of a business name does not confer intellectual property rights. Please seek legal advice to learn how to best protect your business name.

How do I change the name of the person using the Business Name?

From 28 May 2012 this can only be done online.  This means that having signed change of person forms placed in Escrow will no longer be possible.

The transfer process will require the cancellation of the business name and an election to transfer that name by the current owner. The future owner will need to adhere to particular time limits in relation to the transfer and use the consent-to-transfer reference number that will be provided to the original owner in the process of cancellation.

Once an application to cancel a business name has been submitted, it cannot be withdrawn, therefore business name holders should be cautious when undertaking this process.

What if I wish to use a Business Name in Victoria and someone from Perth has that name registered?

The Perth registration will block the registration of your proposed Business Name and you will have to choose another name. The new system gives national effect to a registration.

Prior to registering your proposed business name, you will be able to check the availability of business names on the ASIC website. Your proposed business name will be assessed against 14 criteria and an immediate response will be generated. The responses will appear as follows:

• Green: the business name is registrable
• Amber: the business name has not met one or more of the 14 criteria. Proceed with registration and ASIC will assess the business name within 2 business days to determine whether or not it can be registered.
• Red: the business name is unavailable.

Will a registered trade mark block the registration of my Business Name?

It will not, but you should not use your Business Name in this case until you have obtained legal advice as such use may be trade mark infringement.

Further information:

For additional information or assistance in using the National Business Names Register, please contact Wendy Burnett on 03 8540 0288 or wendy.burnett@mst.com.au.