1. What is a key difference between merely registering a business name and incorporating a company?
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 etc.) 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 Business Names Register was set up. The primary purpose of the Business Names Register 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 (and how they may be contacted). So, when persons are 'having dealings with' a business name, they may look up the Business Names Register 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/get-the-right-ip/trade-marks/ .)
(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, even without having previously traded in Australia under that business name (and therefore even without having previously registered the business name in Australia). This might occur where, for example, the relevant name is so 'big' and widely known in Australia simply by virtue of TV shows, movies, magazines and the like depicting its use outside Australia. 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. How do I tell if my actual or proposed business name has already been registered by someone else?
You can register a business name through ASIC, or with help of an ASIC registered agent or your accountant or solicitor, or you can do so through our automated online 24/7 system, TradingAs.com.au.
6. 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 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 -
Category: Personal Finance