National Business Names Bills passed

The Business Names Registration Bill 2011, Business Names Registration (Fees) Bill 2011 and Business Names Registration (Transitional and Consequential Provisions) Bill 2011 have been passed by both Houses of Parliament and are awaiting Royal Assent.

UPDATE: Royal Assent given on 3 November 2011.

UPDATE 4 November 2011: The Business Names Registration (Application of Consequential Amendments) Bill 2011 clarifies that consequential amendments to other Commonwealth Acts will not apply until the National Business Names Registration System commences.

The Bills provide for a single national business name registration system which will allow businesses to register a business name once in Australia, regardless of how many state or territory jurisdictions they operate in. Registration of a business name will require an Australian Business Number (ABN). The scheme will be operated by the Australian Securities and Investments Commission (ASIC).

The scheme will commence on a date to be determined, expected to be between May and July 2012.

A proposed Business Names (Availability of Name) Determination 2011 will prevent identical business names in the States and Territories being registered in the future and will also prevent the registration of otherwise undesirable names such as names that are misleading to consumers or offensive.

The registration of a business name under this legislation will not give rise to any proprietary rights over that name; that will still require registration of a trade mark.

What will happen to existing business names?
A national Business Names Register will be formed by the electronic transfer of existing State and Territory business names registers to ASIC.

Currently registered business names will remain registered on the national register (with no additional fees) from the change over day to the last day on which registration would have expired under the relevant registration law of the State or Territory where the business name was registered.

If two or more identical or nearly identical business names are already registered in different States, ASIC has a discretion to place on the Register a distinguishing word or expression to assist in distinguishing between businesses carried on by different entities, for example the location at which the businesses are carried on by the entities.

Before placing a word or expression on the Register ASIC must notify the entities which hold the business names that ASIC is considering placing the particular word or expression on the Register and that they have the opportunity to suggest an alternative. The entity has 28 days to either accept ASIC’s suggestion or to object and nominate an alternative word or expression.

The distinguishing word or expression does not form part of the registered business name. Therefore, businesses are not required to display the distinguishing word or expression in or include it in written communications.

Once a distinguishing word or expression is added to a name, a name that is identical or nearly identical to the name including the distinguisher is not available to any other entity.

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