Franchising lawyers from Mason Sier Turnbull discuss new national business name registration

A new national online registry of business names is expected to commence in April 2011. Here, Mason Sier Turnbull franchising lawyers explain several consequences this will have for existing businesses.

Currently, business owners are required to register the name of their business (unless they are trading under their own name) in the State or Territory in which the business operates.

This means that businesses operating in more than one State or Territory are required to make multiple registration applications.

With the introduction of the Business Name Registration Bill 2010, Mason Sier Turnbull franchising lawyers note that business names will need to be registered nationally, irrespective of whether or not the business trades in more than one State or Territory.

With only one application required to register a business name nationally, the new system will ensure administration costs for businesses trading in multiple States will be drastically reduced.

The national online register will be administered and maintained by ASIC, and will enable businesses to make a joint application for a registered business name and an ABN.

All new applicants for a registered business name will be required to have an ABN (or make a joint application for an ABN), however owners of existing business names will not be required to apply for, or have an ABN, upon renewal of the business name.

Business owners will no longer need to search for identical or similar company names before applying to register a business name on the new national register, as the register will automatically check for existing similar or identical business and company names.

Existing registered business names are expected to be automatically transferred to the national register. Existing identical business names that are registered in more than one State or Territory will be identified on the national register with a geographical marker, such as (SA) or (VIC), but the business name will apply nationally.

Legal consultants from Mason Sier Turnbull advise that, prior to the introduction of the new system, business owners ensure that several factors have been considered.

First, the franchising lawyers advise business owners to ensure that their business name is currently and validly registered, to guarantee that their registered business name will apply nationally.

If a business name lapses before the introduction of the new register, the legal consultants caution, business owners may encounter difficulties re-registering the name if it conflicts with existing business names that are transitioned across to the national register, or are registered after its introduction.

Where a business owner has, in the past, been unable to register a business name in a particular State or Territory due to a conflict with an existing business name in that State or Territory, Mason Sier Turnbull franchising lawyers suggest that the business owner considers registering the name in a State or Territory where no current conflict exists.

Once the new register is implemented, this may mean the business name will apply nationally. While a geographical marker will apply to the business name in this scenario, the registration will apply nationally.

Mason Sier Turnbull legal consultants also point out that the new register does not change the fact that business name registration does not afford the same protection as the registration of a trade mark.

Where a business name is used as part of a corporate identity, brand and/or logo, the franchising lawyers recommend registering the business name as a trade mark.

Trade mark registrations currently apply nationally and provide protection for the intellectual property and the value of the goodwill associated with a business name.