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National Registration for Business Names

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National Registration for Business Names

The creation of a national register of business names has been proposed by the Business Names Registration Bill 2011.  The register is to be administered by the Australian Securities and Investments Commission (ASIC) and is expected to be launched in July 2012.

The purpose of the national register is to enable those who deal  or propose to deal  with that business to determine the identity and contact details behind the business name. The registry will allow cheaper and easier registration covering all of Australia and also introduces a way to address issues of trade mark owners.

Previous Trade Mark Problems

Trade marks and business names are currently kept on separate registers administered by the Registrar of Trade Marks and ASIC respectively.  Some common confusions relating to business name registration include:

1. the perception that the registrant of a business or company name acquired a proprietary interest in it;
2. the perception that during the registration process the business name is cross-checked with other government departments to ensure it is not offending the rights of a trade mark owner.

Due to the lack of cross-referencing between registers, it has been possible to register a business name or incorporate a company with a name that is deceptively similar to a registered trade mark.

To combat this problem, IP Australia has issued warnings such as, “Caution: When you register your business name, be careful that it does not infringe on someone else’s trade mark. It is wise to search the trade mark databases first,” and has encouraged more public education about the trade mark register. However, a search of the IP Australia trade mark database can be complex and difficult for a member of the public to carry out.

The New Developments

TM Check is proposed to be launched along with the national register. TM Check is a search tool, developed through the Department of Innovation, Industry, Science and Research, and IP Australia, that looks at the business name sought and the goods or services describing the nature of the business.

When filling out an application for registration of a business name, the applicant will be required to tick a box in acknowledgement of two questions:

1. That the applicant is aware that a business name does not entitle the application to ownership of the name; and
2. That the name of the business may offend the rights of a trade mark owner. This questions includes an invitation to complete a simple check of the trade mark register using a link to TM Check.

There have even been recommendations to make the TM Check a compulsory step in the business name registration process. This would work to attribute notice of a registered trade mark to the business name of the applicant and also to make an innocent applicant aware that the name may breach a trade mark owner’s rights. This process could also provide evidence where notice of the registered trade mark is relevant. This is relevant for claims under s43 Trade Marks Act 1995 and where the court is considering the award of additional damages.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au