You’ve known what the name of your business will be since you first had the spark of an idea. Now how do you make sure no one’s beaten you to that name? And what makes it legally yours? “It’s worth doing the research,” says Sydney-based commercial lawyer Embeth Sadie, who advises startups and small businesses at the virtual firm Sprintlaw. “Rebranding later has a cost not only financially, but on the goodwill and reputation a business may have already developed with its customers.” She explains what you need to know about how to register a business name, as well as answering questions about the application process, costs and more.
How Do I Come Up With a Business Name?
Think about your customer base and make sure the name is in line with your branding. What message are you looking to send? What vibe does your name give off? If you're looking to project something serious and professional, that will leave you with a very different name to that of a more quirky, lighthearted branding strategy.
How Do I Register It?
If you already have an ABN, you can simply log on and register your business name through your ASIC Connect account. Alternatively, you can use the Australian government’s Business Registration Service in conjunction with registering an ABN. Both are straightforward processes and there’s a lot of guidance online. Once your application is submitted, it can take less than 20 minutes to have your registration processed by ASIC. If there’s already the same or a similar name to the one you’re looking to register, you might encounter issues. If the words in the name aren’t in the dictionary, ASIC sometimes does a manual review. There could be a couple of hours’, or even days’, wait.
How Much Does It Cost to Register a Business Name?
It's $37 for one year and $87 for three years. If you don’t keep your registration up to date, ASIC may cancel your business name and it then becomes available for another business to take after six months.
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Can I Check Myself Whether a Name is Taken?
If you go into the Australian Business Register, you can search the name you’re looking to trade under and it will pull up any names that are the same or similar. You can check whether a domain name is taken using the Business Registration Service’s business name check. It would also be prudent to do a trademark search. IP Australia is the government body that regulates trademarks; they have a free search tool where you can make sure there’s nothing the same or similar.
Why Should I Bother Registering a Trademark?
It means you get exclusive use of the trademark for 10 years in your category of goods and/or services. Registering a business name doesn't actually entitle the owner to exclusive use of that name; it just means you’ve claimed that name on ASIC’s records. A trademark is one of the only forms of intellectual property that is actually registrable. If you're looking to bring on investors or to sell the business, it's often considered valuable. You've got an offensive right, [which means] you can enforce that name against others. You've also got a defensive right: you know you're not infringing on somebody else's trademark if you've already secured it for yourself.
Does It Matter if an Overseas Business Has the Same Name?
There's not a clear answer to that. If you're really committed to a name, and if your business operates exclusively in Australia and markets to a narrow, location-based set of customers, such as a café or a salon, you may be more inclined to go ahead if an international business has the same name. But be aware of the risks. If you're looking to expand internationally, there may be a trademark over that name in a country you're looking to expand into. That business might have intellectual property protection here by way of an international agreement between Australia and various other countries, under which a trademark owner in a foreign country can apply for protection over their trademark in Australia, but in that case, that name should also appear in IP Australia’s trade mark search tool.
Should I Use My Own Name as My Business Name?
If you're the face of your brand, it might make sense. But if you're ever looking to sell and no longer want to be the face, I’d imagine you'd encounter difficulties finding a buyer. You could certainly sell the business with your name attached but you may not have control over business direction and no way of regaining control over your name.
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Can I Change My Business Name in the Future?
You can register a new business name to your ABN and cancel your old business name. You can do that if you operate through a company, too, or change the actual company name, which attracts a $417 ASIC fee. If you've been trading for a while and built up a customer base and reputation and invested in marketing and branding, you should carefully consider if changing your business name is the right choice. However, if your business has changed direction and the name is no longer representative of your brand's message or industry, if it gets confused with another business's name, or it’s difficult for customers to spell, pronounce or remember – if you’ve done the research and weighed up the benefit – it might be strategically smart to change the name.
What if Another Business Wants to Use My Business Name
Your options depend on whether or not you have a trademark, which gives you strong rights. But if you don't have a trademark, you still have options. If a business is trading under a name so similar to yours that customers could be confused, then that business might be considered as engaging in ’deceptive and misleading conduct’. The Australian Competition and Consumer Commission has heaps of resources available for businesses in terms of what’s considered misleading to a consumer. There’s also a related concept of ‘passing off’, when a business presents their products or brand in a way that mimics another business, relying on the second business’s reputation for its own gain and confusing customers. But those are both more difficult to enforce than having a trademark registration.
Should Availability of Social Handles Affect My Choice of Name?
The handle doesn't have to be exactly the same. You often see businesses using an acronym or have their name with another addition, for example, adding “aus” at the end. In saying that, along with checking the business name register and trademark register, it’s worth doing a Google search to make sure a customer wouldn't accidentally end up on the wrong social media profile.
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Can I Use a Social Media Account’s Name if It’s Not Registered?
If they're operating in the same category of goods and/or services, [it could be confusing to your customers and] it would be a chance some businesses may not want to take.
This is general information only and does not constitute financial or legal advice. Other requirements under the law apply. Seek professional financial and/or legal advice to determine the right outcomes for your business.
