“Business” is defined as an activity (or series of activities) done:
- in the form of a profession, a trade, employment, a vocation or a calling;
- in the form of an adventure or concern in the nature of trade; or
- on a regular or continuous basis, in the form of a lease, licence or other grant of interest in property.
However, the definition excludes entities that would not be entitled to an Australian Business Number (ABN). Entities that are not entitled to an ABN include an employee, some residential property investors, as well as a person undertaking activities as a hobby.
How do I register a business name?
A business name may be registered with the Business Names Register online via the Australian Government Business Registration Service.
An application must include the business’s name and identification details, its ABN and its address (both for the principal place of business and for service of documents). The application must also specify the registration period sought and whether the entity is disqualified.
An applicant will need to check whether the proposed business name is available and that it is not being used by any other business, either as a business name or as a trade mark.
The Australian Securities and Investments Commission (ASIC) must register the business name if it is satisfied that:
- the entity has an ABN;
- the registration fee has been paid;
- the name is available to the entity; and
- the entity is not disqualified.
If a business operates under a name that is not registered, it faces a penalty of 30 penalty units ($6660, at the time of publication).
Generally, a business name will be registered for either one or three years, before the registration must be renewed.
Disqualified entities
A person may be taken to be a disqualified entity for a number of reasons.
These include being disqualified from managing corporations under the Corporations Act 2001 (Cth) because, for example, they have been convicted of an offence involving dishonesty that is punishable by at least 3 months’ imprisonment, or they have been convicted of an offence against the law of a foreign country that is punishable by more than 12 months in prison. The length of the disqualification period for eligibility to register a business name depends on the reason why a person is a disqualified entity.
ASIC must be notified if an entity that has registered a business name becomes insolvent or bankrupt.
Limits on professional names
The use of professional or industry terms in a business name may be prohibited by laws other than those in the Act.
For example, in each state and territory, a person must be licensed or registered as an architect, builder or veterinarian in order to use that title in their business name.
When is a business name registration cancelled?
A business name registration may be cancelled if, for example:
- the registration entity requests ASIC to do so;
- ASIC becomes aware that the name should not have been registered;
- the entity becomes disqualified;
- the entity fails to satisfy a condition of registration;
- the entity has not used the business name for at least three months;
- the entity fails to provide information requested by ASIC;
- the registration has expired;
- the entity no longer exists; and/or
- the business name infringes a registered trade mark.
What if someone is using my registered business name?
Registering a business name does not provide exclusive trade or ownership rights to it or prevent another business from registering a similar name.
To achieve this, a business will need to register the name as a trade mark, which allows exclusive use of the name throughout Australia initially for 10 years.
If a business is using a trademarked business name without consent, they could be prosecuted for trade mark infringement.
If a business is passing itself off as another business, this may be misleading and deceptive conduct, which can be reported to an agency such as the Australian Competition and Consumer Commission (ACCC).
How Gibbs Wright Litigation Lawyers can help
You can discuss your business disputes with our business litigation team here at Gibbs Wright Lawyers in a confidential consultation.
