A good business name will help ensure you're creating the right image for your business. It'll also help to distinguish it from your competitors. Before deciding on your name you should familiarise yourself with the different registration requirements.
A business name is a name under which your business trades and it needs to be registered in Australia.
A company name must be registered with the Australian Securities & Investments Commission (ASIC). But if you want your company to trade under a different name, then you're also required to register the trading name as a business name.
Be aware that registration of a business, company or domain name does not in itself give you any proprietary rights - only a trade mark can give you that kind of protection. Ensure you have exclusive use of your name now and in the future throughout Australia by registering your business name as a trademark.
1. What are two key differences between merely registering a business name and incorporating a company?
The mere registration of a business name (such as 'Jenny's Flower 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 'Jenny's Flower 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 merely 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.
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).
3. 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.
4. 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'.
5. Do I have to register my business name in all Australian states?
No. Under the new system you now only need to register for a business name once, instead of having to register your name in each state and territory you want to operate in. Once your name is registered, it's registered nationally.
6. Does the registration of my business name 'as a company name' (e.g. 'Huggies' becoming 'Huggies Pty Ltd'), prevent the registration of that 'same' business name (e.g. 'Huggies') by another person?
Yes, it does.
8. Should I consider registering my business name (e.g. 'Huggies' Pty Ltd) as a domain name (e.g. 'Huggies.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.
Your domain name is your website address on the internet and gives you an online identity or brand. It's a valuable part of your business identity and is an important marketing tool that can help customers find and identify with your business.
Like a business name, the domain name is an important decision and thus it's worth putting some time and effort into the choice.
Clearly, being in the position of needing both a domain name and a business name is the best position to be in because you have more flexibility. A way of targeting a geographic location is to target within the keyword part of the domain itself. For example, a ‘dentist' based in ‘Parramatta' could use dentistparramatta.com.au. These domains do extremely well in regards to search engine optimisation (SEO) but aren't very popular as brands and don't limit yourself by including a location in your business name if you hope to expand in the future.
The choice to make upfront is to either choose a domain name with a specific keyword that leads to search engine optimisation (SEO) value because a key part of your business growth strategy is to drive online traffic to your website or to choose a generic brand name and take on the marketing challenges.
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