06 Jun Your Guide to Choose and Register a Business Name in Australia
Author: Zeinab Farhat, Progressive Legal
If you are in the process of starting a business, it is often the case that the first matter for consideration is what to name your business and how to register a business name.
Your business name plays a vital role in representing your brand on the market, and as such, it is important to be across some of the legalities behind business names.
This article will consider:
- What is a business name?;
- How to register a business name?;
- How much does it cost to register a business name?;
- Company name vs business name; and
- Trade marking a business name.
What is a business name?
A business name is a registered name that helps customers to find and identify your business. Business names are linked to your Australian Business number (ABN).
Your ABN is an identifying number which is used by businesses to interact with government departments and agencies.
How to choose a business name?
Choosing the perfect business name is a crucial step towards establishing a strong online presence. Start by brainstorming relevant keywords that reflect your business’s nature and industry.
Keep it simple, catchy, and easy to remember, ensuring it resonates with your target audience. Make sure the name is not already taken or trade marked to avoid legal issues. Consider incorporating location-specific terms if your business is local. Go for a name that conveys your brand’s values and sets you apart from competitors.
Remember, a well-optimised business name helps search engines identify your services, boosting your online visibility and attracting potential customers.
Invest time in selecting a name that represents your brand effectively and leaves a lasting impression.
How to register a business name?
In order to trade under a specific name, you will need to register the name with the Australian Securities and Investment Commission (ASIC).
You must register your business name unless you fall within an exception captured under s 18(2) of the Business Names Registration Act 2011 (Cth) (“the Act”). If you do not do this, you may be in breach of s 18 which is an offence of strict liability.
As an offence of strict liability, it is immaterial whether you were aware, or intended to breach s 18 (s 18(3)). Where you are accused of contravening s 18(1), you will bear the burden of proving that you can rely on an exception in s 18(2) to avail yourself of the offence.
Section 18(1) does not apply if:
- the entity is an individual and the name is the individual’s name (s 18(2)(a)); or
- the entity is a corporation and the name is the corporation’s name (s 18(2)(b)); or
- the entity is a partnership and the name consists of all of the partners’ names (s 18(2)(c)); or
- the name is registered to the entity on a notified State/Territory register (s 18(2)(d)); or
- an Act of the Commonwealth, a referring/adopting State or an affected Territory, or an instrument made under such an Act, specifies the name as the name of the entity (s 18(2)(e)); or
- the entity is a government body (s 18(2)(f)); or
- the entity is a notified successor in relation to the name (s 18(2)(g); or
- other circumstances prescribed by the regulations for the purposes of this paragraph apply.
What should I consider before registering a business name?
Some questions to ask yourself before registering a business name are:
- Is the business name available?: you will not be able to register a business name that already exists. Use this business name check tool as a guide to see whether your business name is available for registration.
- Consider whether you need to register your business name by reflecting on whether you fall within any of the exceptions to registration under s 18(2) of the Act.
How much does it cost to register a business name?
You can find the fees for registration here.
Registering
To register a business name, you will need to pay:
- $39 for one year; or
- $92 for three years.
Renewing
If you want to renew a business name which is identical to the registration, you will need to pay:
- $39 for one year; or
- $92 for three years.
Transferring
If you are transferring a business name, you will not need to pay a transfer fee. However, the person buying / receiving the business will need to pay a fee once they register the business under their details. The receiving party will need to pay:
- $39 for one year; or
- $92 for three years.
Company name vs Business name
It is important to be mindful of the distinction between a company name and a business name.
A company name is a separate legal entity whereas a registered business name is essentially the name under which you trade. A company name can be different to your business name.
Some points of distinction include:
- A company has the same rights as a natural person (i.e. to sue, be liable for legal actions, own property etc). A business name is not a separate legal entity, and therefore, does not enjoy these same rights.
- The Corporations Act 2001 (Cth) applies to companies, whereas the Act applies to business names.
Trade marking a business name
The mere act of registering your business name will not provide you with the exclusive rights to use the name in the marketplace in which your business operates.
Instead, you will want to consider registering your business name as a trade mark with IP Australia. By obtaining a registered trade mark, you will be provided with the exclusive rights to use the trade mark in connection with the goods and services you have registered the mark in.
Opposing a Trade Mark registration
Where a person/ entity has applied to register a trade mark, there is an opposition period of two months where another party (i.e. you) can oppose registration of the mark. If someone is trying to register a trade mark in your business name, you can lodge an opposition.
Such application must include evidence that you were using the name first and continued to use it until the other parties application.
Where you do not oppose the mark, the applicant may be able to proceed to registration. In such circumstances, if you used the mark before the registered holder, you may have a defence to a claim of infringement where the registered holder of the mark has attempted to enforce its rights against you.
If you need advice in relation to trade mark oppositions, reach out to our experienced trade mark team.
Key Takeaways
Your business name is an important aspect of your business.
As such, you should be across key issues such as how to register a business name and the costs associated with registration. Further, it is equally important to consider other forms of brand protection such as the registration of a trademark.
By November 2023, all business names which are not registered with ASIC will cease to exist, so it is important to do this as soon as possible before the cut off.
If you require any advice in relation to responding fill our online contact form on this page or contact our office at 1800 820 083.
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09 April, 2024
10 October, 2023
Zeinab has completed her Arts Law combined degree at the University of New South Wales. She helps Progressive Legal’s clients with their commercial, corporate and intellectual property protection. Zeinab enjoys building relationships with clients as well as co-workers, and believes a great sense of humour is vital.
