Before looking at some significant differences between the rules regarding company name availability and the rules regarding business name availability, by way of background it is worthwhile first looking at the sources of the company name and business name availability rules, and some key similarities between them.

Source of the Company Name Availability Rules

The rules regarding the availability of registered company names (for example the name of a Pty Ltd company) are laid down in a combined reading of the following –

• Section 147 of the Corporations Act 2001
• Schedule 6 of the Corporations Regulations 2001

Source of Business name Availability Rules

And the rules regarding the availability of registered business ('trading as') names are laid down in a combined reading of the following –

• Section 24 of the Business Names Registration Act 2011 (‘Decision to register a business name to an entity’)
• Section 25 of the Business Names Registration Act 2011 (‘Is a business name available to an entity?’)
• Section 26 of the Business Names Registration Act 2011 (‘Identical or nearly identical names’)
• Section 27 of the Business Names Registration Act 2011 (’Undesirable names’)
• Section 28 of the Business Names Registration Act 2011 (‘Restricted words and expressions’)
• Section 29 of the Business Names Registration Act 2011 (‘Priority’)
• Section 54 of the Business Names Registration Act 2011 (‘Business name held during review period for cancellation decision’)
• the Business Names Registration (Availability of Names) Determination 2015

Some key similarities between the Company Name Availability Rules and the Business name Availability Rules

The rules regarding the availability of registered company names and the rules regarding the availability of registered business names are similar in many respects. For example, both sets of rules provide that, in comparing a proposed name with a registered name to see whether the proposed name is identical to an already registered name (and thus is not available to be registered), each of the following matters in the proposed name and the registered name are to be disregarded (but please note that this is not an exhaustive list) –

• punctuation marks
• spaces between characters
• whether letters are rendered in upper or lower case
• whether words are in the plural or singular
• font size
• font type
• Pty Ltd notations

Some significant differences between the Company Name Availability Rules and the Business Name Availability Rules

There are however a number of significant differences between the Company Name Availability Rules and the Business name Availability Rules. Without intending to list all such significant differences, here are three of them –

• Under the company name availability rules the order of words is taken into account, whereas under the business name availability rules, the order of words is disregarded. So, for example, the existence of the registered company name Glad Wrap Pty Ltd would not prevent a company called Wrap Glad Pty Ltd from being registered. However the existence of the registered business name Glad Wrap would prevent the business name Wrap Glad from being registered.
• Under the company name availability rules the pronunciation of words is not taken into account whereas under the business name availability rules, the pronunciation of words is taken into account. So, for example, the existence of the registered company name Creative@Work Pty Ltd would not prevent a company called Kre8tive at Work Pty Ltd from being registered, even though those two company names may be pronounced the same way. However the existence of the registered business name Creative@Work would prevent the business name Kre8tive at Work from being registered.
• Under the company name availability rules one can mostly ‘get away with’ incorporating a company with a name that means much the same thing as another already registered company name. For example, the existence of a registered company named Holiday Apartments Pty Ltd would not prevent the registration of a company by the name of Holiday Units Pty Ltd. In contrast, under the business name availability rules, there are whole range of words and expressions which are taken to be identical, even though they are visibly different [which words and expressions are set out in Schedule 1 of the Business Names Registration (Availability of Names) Determination 2015]. So for example, the existence of the registered business name Holiday Apartments would prevent the registration of the business name Holiday Units.