Legal
May/June 2003
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Business
Names
By Tom Williams, Solicitor
om Williams, Solicitor, simplifies the issues associated with registering
your business name.
A registered business name is a trading name under which you carry
on a business or trade. It should be as distinctive as possible to prevent
creating any confusion to the public.
There is some confusion between the registration of a company - which
is subject to Federal legislation, and the registration of a business
name - which is governed by the State (and Territory) Business Names
acts. The Business Names acts are uniform throughout Australia.
Business name registration is compulsory and you should not commence
business or print stationery until your business name is registered
and you as the owner of the business have been issued with a Business
Registration Certificate.
Registration
The registration and the issuing of a Business Registration Certificate
is the responsibility of the State in which your business trades and,
where your business operates in a number of States, you should register
in each state. A full listing of relevant departments appears at the
end of this article.
The registration requires the completion of an Application form and
the payment of a fee. The Application form can be downloaded from the
appropriate State website or obtained by contacting the department directly.
The returned form is checked by the department prior to registration.
The associated legislation attempts to prevent the registration of
names which will mislead or confuse the public. This legislation also
precludes the use of such words as "building society", "ANZAC"
and "Royal Family" or any offensive words, or words used to
advertise an illegal activity.
When considering a potential business name for registration, it is
advisable you first check the National Names Index. This is a free online
service which provides very basic information, on names, companies and
businesses already registered with either the State or Federal authorities:
www.asic.gov.au
Names that are identical to an existing business or incorporated association
name in the State, or company name anywhere in Australia, will not be
registered, although a company may apply to register its company name
as a business name.
The State departments will not register any proposed name if, in their
opinion, it is too similar to an existing business or incorporated association
name in the State or company name anywhere in Australia.
Please note that the departments do not check your proposed business
names against trademarks. You can search the register of Trade Marks
separately on the IP Australia website: www.ipaustralia.gov.au
Challenges to the Registration
Even if your business name gets registered, this does not prevent a
previously registered entity from challenging your registration, especially
if they can prove the your latter registration is for the purposes of
deceiving the public.
The previously registered business may sue you under the Trade Practices
Act or claim damages under an action of "passing off" in common
law. The legal remedies allowable include the removal of your business
name from the register and may even require you to pay compensation
to the original business for loss of trade.
Legal action can also be taken
if:
· The name is misleading as to the
origin of the goods and services. For example, if you create the impression
that the goods and services are sourced from a particular supplier.
· The name suggests a business having
particular attributes or status. For example, if you claim to be a wholesale
supplier rather than retailer.
· The registration details are incorrect
or misleading. For example, your personal details are deliberately incorrect.
The registration may also be withdrawn if your business never did or
is no longer currently trading. Prior to any withdrawal or cancellation
of your registration, you must be notified by the department and be
allowed to clarify the situation. The legislation also gives you an
ultimate right of appeal to the Supreme Court.
Renewal
Your registration is for a period of three years and is renewable for
a small fee.
Ownership of the Business Name
Many new business applicants think that registering a business name
under the business names acts protects them from others using that business
name. It doesn't.
Registration of a business name does not give you the exclusive rights
to use a name or words contained in a name. Another name may be registered
containing the same words as your business name, prefixed or suffixed
by a distinguishing word or words. For example, the registration of
the name "Professional Plumbing" would not stop someone registering
the name "AAA Professional Plumbing."
Also, registering your business name will not prevent the name being
used by somebody who has registered it as a trademark.
If you are registering a company, the Australian Securities and Investments
Commission (ASIC) puts the onus on you to be aware of similar names.
ASIC may be prepared to register names similar to those already registered,
but registration of a company name does not exempt you from any legal
action over the rights of the name. Check the name with either the State
departments or ASIC before registering.
Displaying your name
Once your business name is registered it must be displayed correctly.
Your business name:
· Must
be on public display at every place of business e.g. multiple garage
sites.
· Must also be shown clearly on
any business letter, statement of account, invoice, official notice,
publication, order for goods or receipt issued or signed by the owner
in connection with the conduct of the business.
· Your Business Registration Certificate
must be displayed in the principal place of business (the place where
most of your business is conducted) where it can be easily seen.
Finally, if you trade in any State or Territory it is usually compulsory
for you to register the business and obtain a Business Registration
Certificate. If your business name is registered and you trade or open
a place of business in another state, you need to be registered in that
State.
A company can conduct business under the company name without registering
a business name.
You can conduct business under your own name without registering a
business name, provided you don't change or add anything to your name.
e.g. John Smith is fine but not John Smith's Café. To conduct
business under any other name, that name must first be registered as
a business name.
Australian Capital Territory Registrar
General's Office, Level B1 Allara House
48-56 Allara St, CivicCanberra ACT 2600
PO Box 225 Civic Square 2608
Ph 02 6207 0473
Fax 02 6207 0487
www.rgo.act.gov.au |
Queensland Office of Fair Trading
Level 21,
State Law Building
50 Ann Street Brisbane QLD 4000
GPO Box 3111 Brisbane QLD 4001
Phone (07) 3246 1500
Fax (07) 3246 1589 www.consumer.qld.gov.au |
New South
Wales Department of Fair Trading
1 Fitzwilliam Street Parramatta NSW 2124
GPO Box 972 Parramatta NSW 2150
Ph (02) 9895 0111
Fax (02) 9895 0222 www.fairtrading.nsw.gov.au |
South
Australia Business and Occupational Services
Level 3, Chesser House 91-97 Grenfell Street Adelaide SA 5000
GPO Box 1407 Adelaide SA 5001
Ph (08) 8204 9779
Fax (08) 8204 9771 www.ocba.sa.gov.au |
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Victoria Consumer and Business Affairs
Level 2, 452 Flinders Street Melbourne VIC 3000
GPO Box 123A Melbourne Vic 3001
Ph 1300 58181 www.consumer.vic.gov.au
|
Northern Territory Consumer and
Business Affairs
1st Floor, Minerals House66 The Esplanade, Darwin NT 0800GPO Box
1722 Darwin NT 0801
Ph (08) 8946 9530
Fax (08) 8999 7657 www.caba.nt.gov.au |
Western Australia Ministry of Fair
Trading, Business Names Branch
219 St Georges TerracePerth WA 6000
Locked Bag 14 Cloisters Square WA 6850
Ph 1300 304014
Fax (08) 9282 0851 www.fairtrading.wa.gov.au |
TasmaniaBusiness Affairs
134 Macquarie St Hobart TAS 7000
GPO Box 249 Hobart TAS 7001
Ph (03) 6233 4104
Fax (03) 6233 4882 www.justice.tas.gov.au
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