The New National Business Name Registration System – Are Your Trade Marks And Intellectual Property Protected?

By Raymond Fang of Gadens Lawyers, Sydney

Summary

The registration of trade marks will be even more important for business owners with the new national business registration system, which is proposed to commence in April 2011. The Commonwealth Department of Innovation, Industry, Science and Research is currently in the final consultation stages for the new registration system, pending the passage of legislation in all state and territory jurisdictions.

Currently, business names must be registered in each state or territory that a business trades in. However, as part of the Council of Australian Governments' regulatory reform agenda, the States have agreed to refer their business names registration powers to the Federal Government.

Key Features

The new system will consist of the following key features:

1. business names will be registered nationally, rather than in each state a business trades in;
2. business names currently registered under the state and territory business names systems will be automatically rolled over into the new national system;
3. ASIC will take over responsibility for the registration of business names and for business name searches;
4. businesses can apply online and receive instant confirmation of registration, with an option to renew registration every one or three years; and
5. businesses will have to have an ABN in order to register a new business name, but can register for a name at the same time as ABN registration.

Commentary

At the moment, the same business name can be registered by different companies trading in different states.

It is proposed that when the national registration system comes into place, a 'state or territory suffix' will be added to all existing names to prevent duplicity. For example, Joe's Plumbing trading in New South Wales will become Joe's Plumbing (NSW), while Joe's Plumbing in Queensland will become Joe's Plumbing (QLD).

Importantly, it is proposed that Joe's Plumbing (NSW) will be allowed to trade in Queensland as Joe's Plumbing (NSW). This situation raises the potential for smaller companies to trade off the reputation of more established interstate companies of the same name.

There is a widespread, but mistaken, belief that the registration of a business or company name gives the owner an exclusive right to use the name. Company and business names do not create any rights in respect of the name, and registration simply means that the owner has complied with the statutory requirements relating to the use of a business or company name.

The registration of trade marks will now become even more critical because trade marks give you the exclusive right to use the name or brand in connection with your goods and services. Trade marks need to be capable of distinguishing your goods and services from those of other traders, so common surnames and geographic names will not be easily registered. However, is certainly worth seeking advice as to whether your names and brands are capable of registration.

How Gadens Lawyers can help you

Gadens Lawyers can help you by:

• advising on how the new registration system will affect your business; and
• registering your trade marks and other intellectual property rights to give you an exclusive monopoly in your name or brand.

Alexia Marinos is a Registered Trade Marks Attorney and can provide advice in relation to your trade marks and intellectual property rights.