Registration of an Australian business name - Business name registration Australia - Australian business name registration - Business registration - Register business name - How to register a business name in Australia - Business names registration Australia - Registering a business name in any Australian state or territory: NSW, VIC, QLD, WA, SA, TAS, NT, or the ACT - business name search - business name availability in Australia - differences between registering a business name and incorporating a company *.
* The information presented on this page is not legal, accounting or professional advice and is not in any way meant to be exhaustive. It is simply some information which may give you a degree of understanding as regards the registration of business names. Further, this information is provided by Incorporator.com.au (Incorporator). Incorporator is not a legal firm, nor an accounting firm, nor a professional adviser. Incorporator is simply an automated 'do it yourself' website primarily for the creation of any type of (Australia-wide) company (and thus for the creation of a newly incorporated - Australia wide - separate legal entity). Accordingly, Incorporator's primary use is not for the mere registration of a business name in Australia (or, more precisely, in one or more Australian states or territories … as business names are registered on a state by state basis). However, as Incorporator is often asked about business name registration, we have put together the following information and links which may be useful to you (and which should facilitate your registration of your business name yourself, should that be what you decide to do - it is very easy to register a business name yourself … you simply fill out the relevant form and lodge it at the relevant business names' office along with the relevant business names registration fee). Also, you may want to read the material on this information page (regarding the registration of a business name) in conjunction with one of our other information pages, namely, the one which compares and contrasts the registration of a business name with the registration of a company (and thus with the registration of a company name).
1. What are two key differences between merely registering a business name and incorporating a company?
(i) Business names are registered on an Australian state-by-state/territory-by-territory basis. In contrast, companies, and company names, are registered on an Australia-wide basis.
(ii) The mere registration of a business name (such as 'Johnny's Fish Shop') does not create a new legal entity - the registered business name is simply a name under which an existing person (or partnership, company or trust) trades. However the incorporation of a company (such as 'Johnny's Fish Shop Pty Ltd') creates a separate legal entity - an entity with its own independent existence, powers, rights and obligations.
2. What are some common misconceptions about the registration of a business name?
(i) Many people wrongly think that the primary reason for the registration of a business name is to 'protect it'. Whilst the registration of a business names may well provide a degree of protection of the business name (by default, and from a mere practical point of view, as opposed to a purely 'legal' point of view), this is not the primary purpose for which the Register of Business Names was set up. The primary purpose of each of the state and territory business names registers is to allow members of the public to 'look up' the register so that they can see who is 'behind' a particular business name, or more precisely, who is/are the person/s trading under the business name. So, when persons are 'having dealings with' a business name, they may look up 'the' register of business names (there are actually eight registers of business names in Australia - one for each of the six Australian states and two Australian territories - but you can effectively do a single combined search of them all via ASIC's combined National Names Index), to see who they 'are really dealing with' as a matter of law. (As an aside, and speaking generally, usually the best single way to protect a business name is, if possible, to register it as a trademark - see www.ipaustralia.gov.au.)
(ii) Many people wrongly think that they have a choice as to whether or not to register their business name. In contrast, the real position is that they generally have an obligation to do so. That is, and speaking generally, whenever a person or company, trades under a name other than their own full name (and note that in the case of a company, the company's name ending - e.g. 'Pty Ltd' - does form part of the company's full name), then they must register that name as a business name.
(iii) Many people wrongly think that just because they have their business name registered then by that very fact and without more, they automatically own the business name, and have an exclusive right to use the business name, and that they cannot be prevented (or successfully sued) by others from using the business name. This belief is wrong for all sorts of reasons. For example, another person or company may already have a reputation under (and 'goodwill' in) that business name in a particular state, even without having previously traded in that state under that business name (and therefore even without having previously registered the business name in that state). This might occur where, for example, the relevant name is so 'big' and widely known simply by virtue of TV shows, movies, magazines and the like. In these circumstances that other person or company may well have 'common law rights' which may well 'prevail' over the registered business name. Another example going against this belief is where another person or company, although not having the name registered as a business name, has the name validly registered as a registered trademark (and in circumstances which would cause the trademarked name to prevail over the registered business name).
3. Given that business names are registered on a state-by-state/territory-by-territory basis, how similar to each other, or different from each other, are each state and territory's business names registration laws?
Generally speaking, the business name registration laws are extremely similar from state to state and from territory to territory.
4. How do I tell if my actual or proposed business name has already been registered by someone else?
By searching the Register of Business Names at the relevant state/territory 'business names offices', or, more practically and without cost, by searching ASIC's combined National Names Index.
5. How do I tell if my proposed or actual business name is available to be registered?
Speaking generally, the business name will not be available to be registered if it has already been registered in the particular state in which you want to register it, or if it is identical to the name of an existing incorporated (Australia-wide) company name (ignoring the company 'name ending' e.g. ignoring the 'Pty Ltd' part). (You can use ASIC's combined National Names Index to search for these factors.) However, even if the exact business name has not already been registered, it still may not be available to be registered by you because the relevant business names office may consider that the proposed business name is 'too similar' to an existing registered business name, and/or likely to cause confusion with an existing business name. Thus there is a 'subjective test' when determining the availability of business names. Accordingly, whether or not you are able to get the business name registered may depend upon the viewpoint of the particular business names registration officer you 'come up against'. (By the way, this is different from the position as regards the registration of a company name. With company names - apart from various restricted words etc. and ignoring things like mere plurals and singulars - if a proposed company name is not identical to an existing registered company or business name, then ASIC - the 'Companies Office' - (in effect) MUST register it - per section 147 of the Corporations Act 2001.)
6. How do I register a business name?
By filling out, and lodging, at the relevant state business names office(s) (these are often part of an 'Office of Fair Trading' or part of a 'Consumer Affairs' department) in each of those states or territories in which you propose to carry on business under the business name, a form entitled something like 'Application for registration of business name', together with the relevant registration fee(s). (The relevant registration fee(s), and registration periods, vary from state to state. However they range from nil - in the Northern Territory - to around $200 for a two or three year registration period, with the most common registration fee being around $120, and the most common registration period being two or three years.) You can download the relevant form(s), and get the relevant information, using the following links which Incorporator is happy to provide -
7. Do I have to register my business name in all Australian states?
You are obliged to register your business name (unless the business/trading name is your own name, or your company's full name including the company's name ending - e.g. 'Pty Ltd') in each of those states or territories in which you propose to carry on business under the business name. So if you are carrying on business under the business name in each Australian state and territory, then you are obliged to register the business name in each of those Australian states and territories - eight in all. But if you are only carrying on business under the business name in one state or territory (the most common situation for small businesses), you only have to register the business name in that one state or territory.
8. Does the registration of my business name in one state, prevent the registration of that same business name by another person in another state?
Speaking generally, no it doesn't.
9. Does the registration of my business name 'as a company name' (e.g. 'Smiths' becoming 'Smiths Pty Ltd'), prevent the registration of that 'same' business name (e.g. 'Smiths') by another person in another state?
Speaking generally, yes it does.
10. Should I consider registering my business name (e.g. 'Smiths' Pty Ltd) as a domain name (e.g. 'Smiths.com.au')?
Yes. Why? So that if or when you come to build a website for your business (which is increasingly becoming, and will increasingly become, the norm) you don't find that your business name has been registered as a domain name by someone else.
For a .com, .net, .org, .biz, .info and .us domain names (you may want to secure them now to ensure that they are not taken by someone else), use the following search (and optional registration) feature -
For a .com.au and .net.au domain names (you may want to attempt to secure them now to ensure that they are not taken by someone else), use the following search (and optional registration) feature -
11. If I have just 'registered my business name as a company' (or, in other words, 'incorporated my existing business name', or 'added 'Pty Ltd' to the end of my existing registered business name)*, what should I 'do', if anything, with the existing registered business name?
(*For example, you may have been a sole trader trading under your registered business name 'Smiths' and you may now have incorporated a company named 'Smiths Pty Ltd' to carry on the existing business.)
You will (generally, and loosely speaking) have two options -
(i) Transfer the business name to the company.
In the above example, if you want the newly incorporated company to have the option of trading under the name 'Smiths', as well as under its own name, 'Smiths Pty Ltd', then you will have to fill out and lodge a form advising the relevant state 'business names office(s)' that the company, Smiths Pty Ltd, is now trading under the 'Smiths' business name instead of yourself. For information about this, and the relevant 'transfer of registration' form(s), see the links at point 5 above.
(ii) Relinquish the existing registered business name.
In the above example, if the newly incorporated company will always trade under its own full name, 'Smiths Pty Ltd' (and thus will always use and display the name ending 'Pty Ltd'), and thus will never trade under the existing registered business name, 'Smiths', then Incorporator expects that you would deregister the existing business name - by filling out and lodging a form advising the relevant state 'business names office(s)' that you (nor anyone else - e.g. your company) are no longer trading under the business name. For information about this, and the relevant form(s), see the links at point 5 above.
You may also want to refer to the following additional Incorporator information pages -
