In preparation for the commencement of the National Business Names Register on 28 May, it is expected that State Business Name registries will start scaling down acceptance of applications for new business names from 21 May in readiness for closure on 25 May.

Invoices from State Business Name registries for renewal of business names that expire before 28 May should be paid to the State offices.

You can view a webcast of an ASIC seminar on the new register (about 1 hour) here.

ASIC’s FAQ page has helpful information.

UPDATE 20 May 2012: The Business Names Registration (Availability of Names) Determination 2012 was registered on 18 May 2012. It sets out the rules regarding the determination of whether business names are identical or nearly identical, undesirable names and words or expressions that are restricted.

The Business Names Registration Act 2011 Proclamation provides for the commencement of two dates for the National Business Names Registration System under the Business Names Registration Act 2011 – 20 April 2012 as the day that transitional provisions commence (to allow for data transfer and other transitional activities), and 28 May 2012 for the main provisions of the Act (to allow for the commencement of the National Business Names Registration System).

Background

ASIC has published Regulatory Guide 235 Registering your business name (RG235) explaining procedures under the new National Business Names Register which will commence on 28 May 2012: when you must register your business name, how to register your business name and how to maintain your business name after it is registered.

If, on commencement of the national business names register, a business name was registered in a state or territory, it will not have to be registered again with ASIC. The business name will be automatically transferred to the business names register. The period of registration will also transfer from the state or territory business name systems.

If a renewal date falls on the commencement of the national business names register or shortly after, ASIC may send the renewal notice after the date the business name registration expires. ASIC will not cancel the business name until the extended due date provided on the renewal notice.

If the same business name is registered in more than one state or territory, all the business names will transfer to the ASIC business names register on commencement. If one person owns the multiple names they may choose to keep one business name record (e.g. the business name with the latest registration expiry date) and cancel the registration of the other remaining business names. There is no fee to cancel a business name.

If the same business name has previously been registered by different businesses in different states and territories ASIC will provide additional information on the public register to assist the public in differentiating between identical business names transferred from the states and territories (such as the state or territory the business name was first registered in or the state or territory business name registration number).

The fee to register a national business name online will be $30 for 1 year or $70 for 3 years. An ABN will be required to register a business name.

ASIC has announced that the new ASIC business names register is expected to go live on 28 May 2012. From that date ASIC will nationally register and maintain business names and provide search facilities.

Business names will no longer be required to register separately in each state and territory they operate in. The registration fee will be $30 for one year or $70 for three years.

All existing registrations will be transferred to the new business name service automatically.

Following the start of the new service on 28 May 2012, ASIC will issue renewal reminders to all existing businesses with registered business names.

As registration of a business name will require an Australian Business Number (ABN), a joint online application for an Australian Business Number (ABN) and national business name registration will need to be completed.

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.

More information

The following Regulations have been made to implement the National Business Names scheme when it commences in 2012:

• Business Names Registration Regulations 2011: These Regulations set out the rules that will apply to the regulation of business names, including the establishment of a national registration system for business names.
• Business Names Registration (Fees) Regulations 2011: These Regulations prescribe amounts payable for chargeable matters under the Business Names Registration (Fees) Act 2011.
• Business Names Registration (Transitional and Consequential Provisions) Regulations 2011: These Regulations set out rules for regulation of business names to businesses registered on State/Territory registers before the commencement of the National Business Names System, which will be transitioned into the new national system.

Background

The Business Names Acts have now been published on ComLaw:

• Business Names Registration Act 2011
• Business Names Registration (Fees) Act 2011
• Business Names Registration (Transitional and Consequential Provisions) Act 2011

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

More

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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