PROTECTING YOUR BUSINESS NAMES & IDEAS
Your business identity; company and business names
Business Name and Registration
A business name is the name under which non-companies including sole traders and partnerships trade. It is compulsory to register a business name in every state and territory in which the business operates prior to commencement of trading. An exception applies where the activities of the business are conducted under the actual name of the person or persons involved. Wherever a company conducts their business under a name(s) distinct from the registered company name, a corresponding business registration(s) in the appropriate state/territory must be registered.
The Australian State/Territory Business Registration Authorities are as follows:
- State Business and Corporate Affairs Office (SA)
- Registrar-General of Business names (ACT)
- Department of Consumer Affairs (NSW)
- Officer of Consumer Affairs (QLD)
- Corporate Affairs Office (TAS)
- Office of Business Affairs (NT)
- Office of Fair Trading and Business Affairs and Business Name Registration Office (WA)
Registered Business names are issued with an Australian Business Number. Registration or use of a business name does not create a legal entity or entitle the business to privileges afforded to a company. Unlike trade marks, business names do not provide proprietary right for the use of the trading name.
Company Name and Registration
A Company name is a trading name which creates a legal entity with indication of the legal status and liable of that entity. This company name must be displayed prominently at every place open to the public at which the company carries on its business.
Companies can only conduct business in Australia when registered under the Corporations Law with the Australian Securities and Investments Commission. (ASIC). The ASIC maintains a searchable database of company and state business names from which proprietor information can be obtained and the availability of names determined.
Protecting Names and Logos
It is a requirement of most laws in each state of Australia that when you start business unless that business is in the exact name of yourself as a sole trader, you have to register a business name so that the public are aware of who is behind the business. Registration of a business name does not give you any proprietary rights to that name and certainly does not afford a defence or excuse if that name turns out to be a well used name of another business or worse still if it is a registered trade mark of another business.
Before registering a business name, you should consider doing a check with Yellow Pages as to whether other people are using the same name, contact a solicitor who does Intellectual Property Law or a Patent Attorney to do a thorough search to see whether that name may infringe a trade mark (in that regard the name does not need to be exactly the same to infringe-if it is deceptively similar you may be in trouble if you go ahead and use it). Similarly, if you want to operate as a company, you should go through a similar checking procedure notwithstanding the Australian Securities and investments Commission (ASIC) may register the name and give you an Australian Company Number.
This gives you monopoly rights throughout the whole of Australia to be the only business that uses that name or logo. If you are investing thousands or millions of dollars in developing good will under a name or a logo it makes sense to spend some money to protect that valuable asset.