Patent & Trade Mark
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The new national business names register

Date: 11 June 2010
Author: Joanne Martin
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A new system of business names registration is being introduced. Joanne Martin, Partner at FB Rice & Co, summarises the changes and implications for business owners and company executives.
 

What is changing?

The Australian government is investing in a national business name and ABN registration system to replace the current state/territory based business name registration regime.  The new system is proposed to take effect from April 2011, enabling a  business to register once and pay a single fee to have its business name registered nationally.  Business names registered under the current system will automatically be transferred to the new national register.
 

ABNs and Business Names

Under the national system, new businesses will be required to hold an ABN in order to apply for a business name.  It will be possible to register for an ABN and a business name concurrently.  The business name registration will be instantaneous.  Those businesses which do not hold an ABN will be able to apply for a business name, with the application remaining pending until the approval of the ABN.  If ABN approval is not given, the pending business name will lapse after 28 days.
 

What May Be Registered?

As is currently the case, certain business names will not be registered, for example if the name is identical or nearly identical to an existing registered company or business name, the name is offensive, the name suggests a connection with the government, the name contains unacceptable characters, such as foreign language characters, or the name contains restricted words that require approval from a specific body such as  "ANZAC". 
 
However, as has previously been the case, a business name need differ only in a minor way from a prior business name or company registration in order to be eligible for registration.  Under the business name rules Jo's Emporium and Jo's Emporium Sydney may be registered by different businesses.
 

Confusion Between Trade Marks and Business and Company Names

Registration of a company or business name is often the first step in the start-up phase for businesses.  While this step is necessary, it is critical to recognise that a company or business name registration does not protect that name or provide any proprietary rights. 
 
It is a common misconception that business and company names are "the same thing" as trade marks.  They are quite different.  Registration of a company or business name satisfies the legal obligations of carrying on business under that name.  On the other hand, a trade mark is a "brand".  Therefore, brands or trade marks, whether or not they are part of a company or business name, should be cleared for use, and protected as registered trade marks.
 

Why Register Your Brand as a Trade Mark?

  • Registration reduces the risk of infringing a competitor's trade mark
  • Registration prevents a competitor from using your trade mark
  • Registration prevents a competitor from registering your trade mark

Registration of a trade mark provides clear advantages at a relatively modest cost.  By obtaining trade mark registration you will:

  • Obtain access to straightforward and cost-effective enforcement of your rights against infringers
  • Enable your trade mark to be located on the government website, providing notice to others of your rights
  • Create an identifiable business asset capable of being sold, licensed or transferred
  • Provide a basis for registering your trade mark overseas

Do You Have Any Questions?

We can advise you on the impact of this new system on your business and trade marks, how to protect and strengthen your trade marks and brands by registration and how to avoid the risk of trade mark infringement.  Trade Mark registration equals peace of mind . If you have any questions please email Joanne Martin or call on +61 2 8231 1030.
 
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