Choosing a business name may be a mundane experience that provides a perfunctory label for your product or service, or it can be an inspired piece of branding that will help fast-track your business into consumers’ minds.

Whatever the merits of your business name, from May 28 the process of registering it in Australia has undergone a significant change.

The new Business Name Register, administered by the Australian Securities and Investments Commission, sweeps away the need to document your brand in each state when you launch.

So what does this change mean for you?

What’s happening exactly?

As part of the Business Names Registration Act 2011, ASIC has become responsible for registering all Australian business names in a national, rather than state-by-state, basis.

Until now, each state and territory has had its own business name system. This has meant plenty of administrative – and cost – headaches if you want to extend your brand beyond state borders.

For example, if you’re starting up in Brisbane, you previously had to register with Queensland Office of Fair Trading. If you plan to operate this business under the same name in, say, Sydney, you also had to register it with NSW Office of Fair Trading.

The new National Business Name Register does away with this state-based system. Your business will now be listed on an Australian-wide database.

My God. So I need to contact ASIC as soon as possible to keep my name then?

Woah, hold your horses. Your business name hasn’t vanished from the records in a puff of smoke.

As ASIC points out on its website: “If your business name was registered in a state or territory before May 28, 2012, you do not need to do anything until it is time to renew your business name.”

“Your business name will be automatically transferred to the national register, provided it is not subject to an appeal or other outstanding matter.”

So far, ASIC has transferred a mind-boggling 80 million business name records from the states and territories to the national register. This includes 1.6 million existing business names and 17 million address records.

This list is rather more inclusive than some of the state and territory regimes, some of which didn’t allow certain ventures to hold a business name.

In contrast, the ASIC database will include unincorporated entities that are entitled to hold an ABN, including partnerships, trusts and joint ventures.

ASIC will let you know a couple of months in advance of your business name expiry, when you’ll deal exclusively with them, rather than lots of different state bodies.

If you haven’t registered or even decided upon a name for your start-up yet, you can search for business name availability and apply online here.

What if there are multiple names on the register?

Good question.

There’s a decent chance that you’ve registered your business’ name in several different states. In this case, each one has been transferred to the ASIC database.

You may wish to renew and keep all of these identical names or, more likely, cancel all of them except one.

You can do this without incurring a fee. The best first step is to check that your details have transferred correctly to the ASIC database by going here.

No, no, no – I’m more worried about another business in another state having the same name as mine. Will they steal my amazing moniker from under my nose?

Well, they won’t steal your name, but identical names of different businesses will be transferred across to the new national register.

If your name clashes with another business, you won’t have to change it, but you will have to live happily on the register next to them.

If you’ve operated across state lines until now, then it doesn’t really make any difference to the branding challenge you have in luring customers.

The only change is to the register itself. Helpfully, ASIC says that it will place extra information on the register to distinguish each same-named business.

So your location, for example, may be added to your business name to separate it from another entity.

Thievery!

Well, no, not really.

ASIC says this extra added information doesn’t actually form part of your business name, it is merely to distinguish it from others.

What if I haven’t registered my business name anywhere yet?

Then it’s best if you use the ASIC business name availability tool to see if another business has your moniker.

The new national register obviously increases the chances of a clash, but ASIC is open to appeals and human interaction on the issue.

Plus, you have the opportunity to reserve a business name for $42 if you’re not quite ready to go to market with your start-up.

Great. I’m going to call my business the Non-Sh-t ANZAC Don Bradman Corporation – I’ve checked and no one else has it. The public will love it.

Okay. So the reason no one else has this wonderful title is that it breaks multiple rules on the words you can use in your business name.

Your business’ name can’t be identical to another entity, it can’t be offensive, it can’t contain restricted words and it may be barred if an identical name is under consideration by ASIC bigwigs.

What are restricted words?

There’s a whole list of them, ranging from fire brigade and ambulance to GST and RSL. The aim, obviously, is to prevent the public being misled or confused.

A full list can be found here.

You also cannot claim that a person or organisation endorses your business by using them in the name, unless they explicitly agree. So your Don Bradman ANZAC idea is pretty much a non-starter.

Fine. Whatever. What will this all cost me?

New business name registrations and subsequent renewals cost the same – $30 for one year and $70 for three years.

That is a big improvement upon the current near-$1,000 cost, plus all the associated bureaucracy, of registering in each state.

Indeed. So does this mean I don’t have to worry about trademarks anymore?

No, not quite. Let’s turn to the lawyer on this one.

“All (a business name register) does is comply with state-based legislation, which requires a disclosure of who is operating under a business name,” says James Omond, founder of commercial law firm Omond & Co.

“The only way to secure a ‘proprietary interest’ in a name that you are using [i.e. an ownership interest] is to register it as a trademark.”

“This not only means that other people cannot stop you from using that name, it also allows you to assert your ownership rights in the name against someone else.”

But it’s my business name! I’m the first one to have it and by using it surely I’m protected?

Omond again: “Using a business name will give you ‘common law’ rights to that name, but if you want to sue someone else for using the same or a similar name, you can only succeed if you can prove that you have built a reputation in the name, and suffered actual damage as a result of the other person using it.”

“This can be a very difficult and expensive exercise in court. These requirements do not have to be fulfilled if you have a trademark registration.

“So let me bang the drum again – you need to register your business name as a trademark if you want to truly own it, and be able to protect it.”

Do you really think a mere 22 million people in Australia will be interested in my business? I’m after brand recognition from a global market here. What do I need to do?

The internet has effectively bashed down the doors of international trademarks, making the application of territorial trademarks more complicated than before.

However, you still need to be covered if you hope to take your business name beyond Australian shores.

Omond explains: “There is an international treaty involving 80 or so countries, called the Madrid Protocol, which allows you to file a single application from your home country (i.e. Australia) that nominates all of the different participating countries where you want to register your trademark.”

“As well as benefits such as the ability to file one notice to update a change of address across all countries, and one payment to renew all your overseas registrations in one go, you are also able to make all your payments in Australian dollars.”

“The basic filing cost is about $800 and you then pay a different fee for each country where you want your trademark registered.”

“For some countries (e.g. France and Germany) this is as low as $100. Other countries (e.g. the UK and the USA) charge from $300 to $400.”

“You can also nominate the whole of the EU, for example, for just $1,400. If you use a trademark attorney to do all of this for you (which is advisable), you will also have to pay their fees. (My charge for doing this, for example, is $395 GST.)”

The above was published by Oliver Milman on Monday, 28 May 2012 and can be found in its entirety at http://www.startupsmart.com.au/legal-matters/the-national-business-name-register-all-you-need-to-know/201205286420.html?displaypage=start&utm_campaign=bf78154595-Tuesday_29_ May_2012&utm_medium=email&utm_source=StartupSmart

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