Finding your way around the new ASIC Business Name Regime
ASIC’s new national business name regime has been in force since 28 May 2012, and the old state based and territory-based system is to be discarded (with the exception in Item D.3 below).
Given the complexity of the unfamiliar new system, this simple cheat-sheet may assist you when you apply for, renew, change, update, transfer or cancel business name registrations.
If you wish to:
• Apply for a new business name, please refer to Items A and B.
• Update details of, change, transfer or cancel registration of your business name please refer to Item C.
• Renew your current business name registration please refer to Item D.
A. Prior to applying for a new business name
1. Procure an ABN – you will not be able to apply for a business name without an ABN – you can apply for an ABN via https://abr.gov.au/ There are no fees involved if you apply online and you will receive an online notification of your ABN immediately upon completion of the ABN application, provided you have not omitted any information, or it cannot be verified. In this latter event, your application will be processed manually and may take up to 28 days.
2. Check availability of the business name you wish to register. To do so, go to https://connectonline.asic.gov.au/RegistrySearch. In the ‘search business names register’ window, scroll down and select the last option, ‘check business name availability,’ enter the business name you are after and then click ‘Go.’ If the desired business name is available, proceed to registration (Item B), otherwise try a different name and then proceed to registration.
B. Applying for a new business name
1. Go to the ASIC website http://www.asic.gov.au/ On the right hand side of the page you will find an ASIC Connect window, click on ‘register business names.’ You will be re-directed to the ASIC Connect website where you can apply for a Business Name by clicking ‘log in.’ Enter all your details as prompted and click ‘create an account.’
2. Follow further prompts and proceed to pay the registration fee.
3. Upon completion of your registration transaction, you will see a confirmation screen confirming either; 1) your business name has been successfully registered, 2) you have successfully applied to register a business name but the registration cannot complete until you have paid the registration fee, 3) ASIC has received notification of your ABN (to replace an ABN application reference number), or 4) the name that you have applied for is determined by manual review to be available.
4. Upon ASIC’s receipt of your payment, you will receive an email confirming your registration and an ASIC key to link to your business name in your online ASIC Connect account. If you chose the ‘Pay now’ option during your registration application, you should receive the email notification almost straight away.
5. Within 24 hours of receipt of payment, you will also receive a record of registration containing all the details provided in your registration application and a summary of the information that will appear on the public register.
6. As of 28 May 2012, it is no longer a requirement to display a certificate of registration of a business name. However, ASIC has designed the first page of the record of registration to look like a certificate should you wish to display it.
C. Changing / updating / transferring / cancelling your business name
1. If you have not registered for online access yet, do so via https://www.edge.asic.gov.au/, under the heading eAccess, and follow the prompts.
2. If you have already registered for online access, go to http://asic.gov.au/ On the right hand side of the page you will find a ‘Lodge Online’ window just below the ASIC Connect’s. Click on ‘Update or cancel / transfer business name’. You will be re-directed to another ASIC webpage displaying a large ‘Update or cancel / transfer business name’, click that option and follow the prompts.
3. For Sale of Business – the current business name holder (vendor) must cancel the business name, and, whilst cancelling the name, must select the ‘transfer number’ option, to notify ASIC of their consent to transfer their business name to another holder (purchaser). ASIC will provide the vendor with a consent to transfer number to be given to the purchaser, thus allowing the latter to register the business name. This will enable the purchaser to register the name before it becomes available to the public. Please note that the new registration will not come into effect before the previous registration has been cancelled.
4. Adding word/s to your current business name – adding for example ‘the’, will not amount to a ‘change’ or an ‘update’ since you are seeking to use a new business name altogether. Accordingly, you must cancel your current business name and apply for a new one including the added word. However, please ensure that you request the ‘transfer number’ option contained in the cancellation/transfer window as discussed in Item C3 above. This will enable you to register the name before it becomes available to the public. Please note that your new registration will not come into effect before the previous registration has been cancelled. The fees involved for new registrations are discussed in Item B2 above.
5. Updating Details – please follow the instructions discussed in Item C1 and make sure you keep your information up to date. There are no fees for these types of updates.
6. FRANCHISORS AND FRANCHISEES PLEASE NOTE – In contrast with the previous system, franchisees are not required to provide ASIC with the franchisor’s authorisation to register their business name. However, the franchisor-franchisee consent to register the franchisee’s business name remains subject to the terms of their franchise agreement.
D. Renewal of business name registrations
1. For business names registered after 28 May 2012 – ASIC will provide substantial notice of your business name registration expiry.
2. For business names registered before 28 May 2012
• If your renewal date falls between 28 May 2012 and July 2012, ASIC may send renewal notices after the date the business name registrations expire. In fact, ASIC is expected to start issuing renewals in early July and to extend payment due dates for delayed renewal notices. Given that ASIC will send renewal notices to the existing service addresses provided by the state and territory agencies, please ensure that these addresses are current to avoid the risk that your registration may be cancelled.
• If you have received a renewal notice from a state or territory you must pay that state or territory to renew the name, regardless that you may be late. Should you fail to pay the renewal fee, the relevant state or territory will advise ASIC of the business name’s expiry, thus excluding its registered status on the national register.
The new system may raise critical issues regarding identical business names previously registered by different people with different state/territory agencies.
It is fundamental not to confuse business name and Trade Mark registration rights.
A business name is the name under which a business operates. Notwithstanding their compulsory registration, business names do not give a business name holder any exclusive intellectual property rights with respect to the use of such names in trade and commerce.
Intellectual property rights for exclusive use of a trade name are gained upon registration of a Trade Mark with IP Australia. Registration of a Trade Mark allows a Trade Mark owner to take legal action for Trade Mark infringement in the event that another business uses a similar business name or mark in connection with goods or services similar to those covered by the registered Trade Mark.
Granting a franchised business implies licensing the right to use your Trade Marks and business names to prospective franchisees. Businesses with similar names registered in different states/territories may now come into conflict due to overlapping business names. If this does result in a dispute regarding the right to use the business name, the business that already is in possession of a registered Trade Mark is in an advantageous position in any such dispute. Accordingly, you should ensure that your Trade Marks are registered or apply for any marks that are not yet registered as soon as possible to ensure you negotiate in such dispute from a position of relative strength. In addition, please ensure that your franchisees have registered their business names pursuant to the instructions enclosed in your franchise agreement as late registrations may again risk conflict with interstate businesses with the same business name.
Entering into a franchise agreement grants you the right to use the franchisor’s Trade Marks and business name for your area. All prospective franchisees should ensure that the franchisor’s Trade Marks are registered with IP Australia and that the business name specified in the franchise agreement is available on the ASIC website. If you have already entered into a franchise agreement, please ensure that you have registered the appropriate business name to avoid any risk regarding names availability.
Massimo Di Maio is a Legal Counsel at DCS Lawyers with expertise in corporate and commercial law, franchising, Italian civil law and compliance with the Franchising Code, PPSA and CCA.
DCS Lawyers is a corporate commercial law firm specialised in International and Australian franchising and in assisting franchisors and franchisees with all their legal needs on a largely fixed fee basis with quick work turnaround.
Phone: 03 8102 9200