In this article, we take you through the 5 important steps to take when registering a business name in Australia. This is particularly important for startups.
It's important to know how to register a business name if you are thinking about starting a business or changing your business's name.
In Australia, it is a legal requirement to register a business name that you want to use to trade so that your customers know who is stood behind a name. A good startup lawyer can help you to choose and register a business name.
This article explains how to register a business name in Australia.
This article will take you through the following steps to registering a business name:
Author: Farrah Motley, Legal Principal of Prosper Law and an Australian startup lawyer.
Research the Business Names of Your Competitors
Every business and industry is different. You can either break away from the crowd and register a business name that is completely different to other businesses in your industry, or decide to follow the general naming conventions for businesses like yours.
For example, businesses that provide building and pest inspection services tend to include a reference to 'building and pest' in their business name. This makes it easy for customers to know what it is that you do, but it also means that:
you risk having a business name that is (legally) too close to a competitor's business name'
you risk confusing your customers; and
the business name may be insufficient to distinguish your goods and/or services from those of your competitors (from a marketing perspective).
For these reasons alone, it's really important to think long and hard about what you are going to name your business. If you have any questions about the business name registration process, contact a startup lawyer.
Search the Trade Mark Register
Even if a business name is available to be registered on the Australian Business Register, its use may still infringe upon a trade mark.
If a business name is available on the Australian Business Register it just means that no one else has registered that name.
However, another business might have a trade mark that gives them a better right to that name than you. If you register and use a business name that someone else has a better right to, you could get into trouble.
As any startup lawyer will tell you, there is a common misunderstanding that if you register a business name on the Australian Business Register, it becomes an intellectual property right and an asset that you own.
However, all you are really doing is buying a right (usually one or three years, with options to renew) to trade using that name.
It is a legal requirement to register a business name if the business name is different to a company name. For example, if your company name is 'Peter Potters Plants Pty Ltd', but you trade as 'Betty's Best Botanicals', you must separately register that business name. A startup lawyer can do this for you.
This registration enables your customers to identify the person (or company) that stands behind the name your customers interact with. However, registration is not the same as ownership, because there is no intellectual property in a business name.
A trade mark, on the other hand (which can be registered or unregistered), gives its owner a right to use that name (or its stylised logo) in relation to the relevant goods and/or services, to the exclusion of everyone else. A startup lawyer can register a trade mark for you.
If you register a business name without checking to see if someone has trade mark over the word(s), you may be unknowingly infringing that person’s intellectual property rights.
While this is unlikely to lead to an expensive lawsuit, you may have to change your business name.
This can lead to customer confusion, disruption to your business and the expense associated with rebranding and changing your business name.
Unregistered trademarks are not registered with IP Australia and do not have the protection of the Trade Marks Act 1995 (Cth).
However, unregistered trade marks are still protected by law under the tort of passing of, as well as under the prohibition against misleading and deceptive conduct found in the Australian Consumer Law.
If you've followed step one and done your research on your competitors, hopefully, you will have identified any unregistered trade marks.
So, if you’re thinking of registering a business name it’s important that you not only search the Australian Business Register, but also the Trade Mark Register. The next step is to conduct a trade mark search via IP Australia.
You can do this by searching the whole or a part of the business name you want to register or hiring a startup lawyer to do this for you. If your search finds a result that is similar to the business name you want to register, and relates to the class of goods and/or services relevant to your business, you may want to consider choosing a different business name.
Alternatively, choose a business name that is sufficiently dissimilar from the registered trade mark.
Search the Business Name Register
The next step is to search the Business Names Register.
It’s important to know that just because a business name is available to register, it does not mean that you won’t encounter problems with that name.
For example, the name may be available on the business name register, but using it would cause you to infringe someone else's trade mark.
And the worst part? You may not become aware of this for a long period of time, by which point you may have invested a significant amount of resources in the business name and the brand associated with it.
This is a good reason why it can be beneficial to hire a startup lawyer from the outset.
If the name is available and you've followed the previous steps; you're ready for the next step to registering a business name - checking domain name availability.
Check domain name availability
If your proposed business name is available on the business names register and does not infringe a registered or unregistered trade mark, the next step is to check the availability of your intended domain name.
You can check domain name availability by searching on websites such as GoDaddy, Wix and Squarespace.
Register the Business Name
This is the final step; registering your business name.
Step 1: Sign up to ASIC Connect
You need to create an account with ASIC Connect so that you can login to your account and then complete the online form to register a business name.
You can create an ASIC Connect account here.
Step 2: Login to your ASIC Connect account
After you have created you ASIC Connect account, login to your account here.
Step 3: Complete the online form
Now that you have an ASIC Connect account, you can complete the online form by following the prompts and adding in the relevant information.
A summary of steps to register a business name
Step | To do |
Hire a startup lawyer to research the business names of your competitors | What is a typical naming convention in your industry? Do you want a unique name? Do you want a name that makes it easy for your customers to know what you do? |
Hire a startup lawyer to search the trade mark register | Search your intended business name on the trade mark register; are there similar names being used in the relevant class(es) of goods / services? |
Hire a startup lawyer to search the business name register | Search the business name register to confirm your proposed business name is available |
Hire a startup lawyer to check domain name availability | Check the availability of your business name as a domain (or a variation of it) |
Hire a startup lawyer to register the business name | Follow the detailed steps set out in this guide to register your business name |
How Can Prosper Law Help?
Prosper Law is Australia's online commercial law firm. We help businesses every day to navigate Australian law simply and quickly.
Contact the team at Prosper Law and talk to a startup lawyer if you need commercial legal advice, including help to:
check a proposed business name does not infringe on intellectual property rights
ensure you are able to register a trade mark for your proposed business name
register a business name
Author: Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, One One One Eagle Street, Brisbane Queensland Australia
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