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You say Barrister and I say Barista? Proposed business name laws have hurdles attached

20 October 2011

Last Friday, the Senate passed the National Business Names Registration Package to replace the existing state-based business name registration system with a national online register.  While the registration of trade marks is still separate, and will continue to take place through IP Australia, there will be links to IP Australia in the registration process and entities will be prohibited from registering names that are “identical”, “nearly identical”, “undesirable”, or “restricted”.   If you wondered whether naming your new-born child was challenging, have a think about what the process below means for your business…

We previous blogged a great summary (if we do say so ourselves) here about the proposed National Business Names Registration Package.  On Friday, the Business Names Registration Bill 2011 (“BNR Bill”), Business Name Registration (Transitional and Consequential Provisions) Bill 2011 and the Business Names Registration (Fees) Bill 2011 were passed without amendments.  The Bills are awaiting assent and commencement of most of the bills will be by proclamation.  The new national register is likely to be operational by mid-2012.

As a quick refresh, what do the changes mean?

In brief, the objects of the changes are to:

  • provide for seamless online registration of business names and Australian Business Numbers (ABNs);
  • ensure anyone engaging with a business can identify the entity and its contact details through a nationally established and maintained register;
  • remove the inconvenience of multiple state-based registration;
  • reduce compliance costs to business operating in multiple jurisdictions;
  • avoid confusion due to the registration of identical or nearly identical names;
  • to ensure that undesirable or offensive business names are not registered; and
  • to ensure that restricted business names (for example, names that might mislead consumers) are not registered to entities which do not meet various conditions or requirements.

What do “identical”, “nearly identical”, “undesirable” and “restricted” mean?

Nick Sherry, Federal Minister for Small Business, has released a consultation draft of the Business Names (Availability of Names) Determination 2011 (“Determination”), which provides some guidance.

A business name is considered identical if, despite the characters used in the name, it sounds the same.  In addition, Schedule 1 provides a list of words which are taken to be the same, and is a fascinating read (law geek levels rising).  The Schedule could be seen as a tip for some industries to get more creative, or as a suggestion of oversupply, particularly noting:

“184 – [which includes] bloom, blooms, flora, floral boutique, florist, florists, flowers, flower shop, flower shoppe”; and

“201 – [which includes] cuts, cutz, hair cut, hair boutique, hair salon, hair design, hair fashions, hair centre, hair studio, hair stylist and salon”.

In determining whether two business names are “identical” or “nearly identical” ASIC should disregard:

  • the use of company identifiers like “Association”, “Co-op”, “Incorporated”, “Pty”, “Ltd” etc;
  • whether a word is plural or singular;
  • the size of the characters, type and case of letters, any accents, spaces between characters and punctuation marks;
  • the order of words in names; and
  • any internet domain name extensions, for example “www”, “com” or “org”.

Kinds of names that are undesirable include names which:

  • are offensive to the public or a sector of the public;
  • suggests that members of the organisation are totally or partially incapacitated when those members are not so affected;
  • suggest a connection (which doesn’t exist) with an unusual list of specifics including:
    • the Government;
    • a member of the Royal Family;
    • a charitable organisation;
    • Sir Donald Bradman;
    • Mary McKillop; and
    • the United Nations.

Restricted words and expressions includes names which include the word ‘Commonwealth’ or ‘Federal’ (unless used in a geographical context), and the restricted words listed in Schedule 2, which includes “Australian Made”, “charity”, “police” and “trustee”.

In light of this, it would seem my hope of registering “Australian Made Princess Beatrice Hair Fashions for the Blind Pty Ltd” (in  a nod to the err – iconic- head attire worn by Princess Beatrice  at the Royal Wedding) might be dashed.   Noting the phonetic and spelling differences, it does make one wonder if ASIC will ever need to turn its mind to the old favourite barrister / barista…

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