Good Business Names

Business Names Manual INTRODUCTION This Practice Manual is the culmination of a long-term plan to integrate Practice Notes, Staff Notes and Procedural Manuals which have for some years formed the basis of Business Names registration practice in the ACT. Consolidation and presentation of these documents in one Practice Manual will clarify processes and eliminate confusion and duplication. Publication of the manual was stimulated by a number of factors. These included a review of the current business names legislation and a resultant need to update practices and procedures. The continual and ongoing developments of, and changes within the electronic network have had a tremendous impact on trading procedures and practices within the local business sector. We will continue to improve the manual with updates as business name practices change and modernise. This Practice Manual should be read in conjunction with the Business Names Act 1963 (the Act) and be seen as a practical point of reference in relation to the registration of business names in the ACT. It is not however a technical document or procedures manual. It does not therefore, focus on technical or administrative issues associated with the registration process. The manual similarly, does not canvass legal issues associated with the meaning and interpretation of the Act. Rather, it attempts to explain the nature of the legislation governing business name registration in the Territory and of the subjective testing policy in respect to these names. Updates will be issued using a Chapter number system ie. if Chapter 3 changes then the entire page will be replaced along with any subsequent pages. The method for updating will be as follows: • remove and destroy the old page(s); • insert new page(s); • update the ‘Index’; • update the ‘Contents’ page, if applicable. I acknowledge the work of the staff of the Business Names and Associations Unit in compiling this Manual. Brett Phillips Registrar-General 18 February 2003 Business Names Manual OUR CUSTOMER COMMITMENT Who We Are: The Registrar-General’s Office is a statutory Office within the ACT Department of Justice and Community Safety. The Office was established under the Registrar-General Act 1993. Objective: Our objective is to satisfy community needs and expectations for the registration of rental bonds, land titles; births, deaths and marriages; and business names and associations through high quality service, and to provide an appropriate level of public access to these records. About the Office: We are an independent office within the ACT Department of Justice and Community Safety. Our organisation has a number of responsibilities which can be broadly categorised as follows: . . . . . Rental Bonds; Land Titles; Births, Deaths and Marriages; Business Names and Associations; and Corporate Services. The head of the office is the Registrar-General, who is supported by an Operational Manager and an Office Management Unit Manager. Each Business Unit has a manager responsible for the day-to-day operations of the Unit. Our Business names customers are: • ACT Community; • ACT and Commonwealth Government agencies; • Professional groups including: - accountants, - legal practitioners, - finance industry. • ACT business and commercial sectors; and, 18 February 2003 Business Names Manual • community-and industry based organisations. In Respect to Business Names We Are Here To: • register business names; • provide an accurate and secure register of business names; • provide a search facility to provide ownership and address information for all registered ACT business names; • provide certificates as proof of the registration of a business name which are then displayed in places of business; and, • collect statistical data for government and other organisations. What You Can Expect From Us: • polite, courteous and highly trained staff committed to the provision of high quality service and 100% accuracy of the information we maintain; • registration of business names taking within 20 minutes and 24 hours where the application is lodged in person and the lodgement fee paid in cash or by credit card; and, • searching and reporting on business names, taking between 5 minutes and 24 hours. Where To Get More Information: We are located in Allara House in Allara Street, Canberra City (diagonally opposite the Olympic Swimming Pool). The Business Names Unit is located on the Allara Street level. Our office hours are from 8.30 am to 4.30 pm from Monday to Friday (excluding public holidays). You may obtain information in person during office hours or by ringing one of the contact telephone numbers listed below. If Things Go Wrong Or You Have A Suggestion: If problems arise in the delivery of our services or if you have a suggestion that you feel may assist, please call the appropriate inquiry contact number listed below. ⇒ Manager ⇒ Business Names Clerk ⇒ Assistant Business Names Clerk ⇒ Facsimile Number 620-70473 620-70474 620 70475 620-70487 18 February 2003 Business Names Manual Freedom of Information Requests: You should direct any requests for information under the Freedom of Information legislation to: Freedom of Information Officer Department of Justice and Community Safety GPO Box 158 CANBERRA ACT 2601 How You Can Help Us: Please, • ensure that your documents are complete and correctly signed and that the correct fee is lodged with your documents; • do not expect our office staff to give legal advice or to resolve disputes; • understand that the information held on our registers relates solely to the ACT; • appreciate that, while the information held on our registers is available for public scrutiny, some information may be subject to privacy restrictions; and, • be patient and considerate, especially where staff members are attending to other clients. 18 February 2003 Business Names Manual CONTENTS INTRODUCTION OUR CUSTOMER COMMITMENT CONTENTS CHAPTER 1. 2. 2.1 2.2 2.3 2.4 2.5 2.6 3. 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 4. 4.1 4.2 4.3 4.4 4.5 4.6 5. 5.1 5.2 5.3 5.4 SUBJECT THE LEGISLATION REGISTRATION PROCESS The purpose of registration Do all business names need to be registered? Applying to register a business name Fees Restrictions on registration Licences and permits THE NAMING PROCESS Legislative provisions Ministerial consent Undesirable names Undesirable names Similar names Defence Forces Regulations Other restricted words and phrases Heritage Council Listings Defence Forces Regulations Ministerial Directions ONCE THE BUSINESS NAME IS REGISTERED Indexing and scanning Displaying your business name Changes to registered particulars Renewal of registration Cessation of registration Cancellation of registration OTHER ISSUES Goods and Services Tax Patents and Trademarks Proprietary rights Trading between jurisdictions (cross border trading) 18 February 2003 Business Names Manual 5.5 5.6 Trading practices Resolution of disputes SCHEDULE 1 - WORDS AND PHRASES RESTRICTED FOR USE IN REGISTERED BUSINESS NAMES ATTACHMENTS 1. 2. GLOSSARY OF TERMS INDEX 18 February 2003 Business Names Manual CHAPTER 1 THE LEGISLATION 1.1 FUNCTION AND INTENTION OF LEGISLATION Business names are required to be registered in the Australian Capital Territory (the Territory) under the Business Names Act 1963 (the Act). The intention of the Act is to provide a public register of particulars of all registered names. This register provides details of persons or companies who carry on business under a name other than their own personal name which a member of the public may scrutinise in complete confidence. The Act ensures that this register is clear and understandable by preventing the registration of names which may confuse or mislead, offend or deceive a member of the public in respect to other registered business or company names or alternatively, the nature of the business intended to be carried on under the business name. 18 February 2003 Business Names Manual CHAPTER 2 THE REGISTRATION PROCESS 2.1 THE PURPOSE OF REGISTRATION The purpose of registration under the Act is to provide a public register from which the identity and particulars of persons or companies who carry on business in the Territory (under names other than their own) can be searched and accessed by members of the public. A registered business name is not a legal entity and registration of a business name provides no proprietary rights to the proprietor of the name. Registration does however, allow you to exclusively carry on business in the Territory using the name. No person (other than the registered proprietor of the name) may legally carry on business in the Territory using the name. Moreover, where a business name is registered under the Act, we will not register the name to another party. We will similarly, not register a name which we consider is sufficiently similar to the registered name to cause confusion. Where a person carries on business using a business name registered to another party, this may constitute a breach of the Act which may result in prosecution. We are also aware that most banks and financial institutions will require evidence that a business name is registered before allowing you to open a bank account under the name. Where you decide to register a domain name (eg. on the Internet) it is likely that the service provider will require evidence that the name is currently registered as a business name. 2.2 DO ALL BUSINESS NAMES NEED TO BE REGISTERED? If you intend to carry on business in the Territory using a name other than your own personal name, it is likely that you will need to apply to register the name under the Act. You are, however, not required to register a business name where you elect to carry on business using your own personal name without any addition (eg. John Smith). If however, you decide to qualify your personal name in any way (eg “John Smith Architect” or “Joe Bloggs and Associates”) the name must be registered under the Act. If you carry on business using an unregistered business name you are in breach of the Act and we may prosecute you. You are also not required to register a business name where you: • conduct an isolated or “one off” transaction which is completed within 31 days and not likely to be repeated in the foreseeable future (eg. a trade fair or a product promotion or sale); • are or become a party to any action or suit or any administrative or arbitration proceeding, or effects settlement of an action, suit or proceeding or of any claim or dispute; • maintain any bank account; • effect any sale through an independent contractor; • create evidence of any debt or create a charge on real or personal property; 18 February 2003 Business Names Manual • secure or collect any of your debts or enforce your rights in regard to any securities relating to such debts; or, • invest any of your funds or hold any property. 2.3 APPLYING TO REGISTER A BUSINESS NAME You may apply to register a business name by lodging a “Particulars of Business Name” form with the office, together with the required lodgement fee (refer Chapter 2.4). Forms are available from the office and a copy of the form is included at the end of this document. We recommend that you have several choices of name, in case your first choice is unavailable for registration. The form has provision for you to nominate four alternative choices of name. You may pay the lodgement fee by cash, credit card, EFTPOS or by money order or cheque. We accept all credit cards except American Express and Diners Club. If you elect to pay the lodgement fee by personal cheque we may not process the application until the cheque has been cleared. Normally this means a delay of five working days. We recommend that you lodge your application in person at the office: however, you may forward your application by facsimile and endorse your credit card details on the bottom of the form. You should also carefully consider your required name before lodging your application. Once the name is registered we cannot change it and the fee to lodge the application is not refundable. We can of course accept an application from you to register an alternative name: however you will be required to pay a further lodgement fee. So think carefully before lodging your application. You also need to check that your name does not include any restricted words and phrases (refer Chapter 3). If so, you may need to seek Ministerial consent before we can proceed to consider your application. When completing the form, you need to provide the following information in respect to your business name: • the date upon which business is to commence; • the nature of business; • addresses of all places of business (these must all be within the Territory); • names and places of residence of all proprietors of the business; and, • particulars in respect to your registered agent (if appropriate) (see below). The form must be signed personally by each individual proprietor, or by a person authorised to sign on the proprietor’s behalf. Where the proprietor is a body corporate, a director, manager or secretary of the body corporate must sign the form. Additionally, if all of the proprietors (including body corporates) reside outside of the Territory, a resident agent must be appointed. The resident agent must reside in the Territory and may be a registered body corporate. 18 February 2003 Business Names Manual Where the name requested for registration is available and you pay the lodgement fee by cash or credit card, we will register the name while you wait (once again assuming the name is available). The registered details then form part of the Register of Business Names. We will also issue a certificate of registration which you must exhibit at the nominated place of business. You must not advertise using a business name unless and until the name has been registered. This includes advertisements in local newspapers and trade directories such as the Yellow pages and by letterbox fliers. Advertising under an unregistered business name is in breach of the Act and may lead to prosecution. Similarly, you should not make any arrangements for the printing of advertising material for your business name (such as business cards and letterbox fliers) until the name has been registered. 2.4 FEES A lodgement fee must be paid when you apply to register a business name. Fees are also payable when you apply to renew the registration of the business name or to change any of the registered particulars of the name. A fee is also payable when you seek Ministerial consent to the registration of a business name (refer Chapter 3.2). These fees are prescribed under the Act and are not negotiable. Hence if you lodge a document with the office without the prescribed fee (or with an incorrect fee) we cannot accept the document. We will return the document to you for resubmission with the correct fee. You should also be aware that the Act requires that some documents must be lodged within a particular period of time. These include the notification of changes to the registered particulars of a business name. These documents are required to be lodged within one month of the date the change took place. Where the document is not lodged within this time a higher fee is payable in place of the regular lodgement fee. This is to ensure that the Register of Business Names is maintained up to date. Payment may be made by cash, credit card, EFTPOS or by money order or cheque. We do not currently accept American Express or Diners Club. Also, where you elect to pay the lodgement fee by personal cheque we may not process the application until the cheque has been cleared. Normally this means a delay of five working days. You should be aware that these fees are reviewed each year following the ACT Budget and also in line with changes to the Consumer Price Index. For this reason we encourage you to check the current fee before lodging a document. You can do this by calling one of the contact officers listed above. 2.5 RESTRICTIONS ON REGISTRATION The Act allows us to decline to register names which we regard as undesirable and also names which include words or phrases restricted under the Corporations Law (C’wlth). We 18 February 2003 Business Names Manual may also decline to register names which are restricted for use in business names under Ministerial Direction. These names are discussed in more detail in Chapter 3. We will not register your business name where the nature of business: • suggests an activity which is illegal, or subject to Government control (eg. gambling); • appears inconsistent with, or unrelated to, the name put forward for registration. We will also not register a name if you intend to run a “non-profit” organisation (eg. a philanthropic group or a charity). You must be operating on a ‘fee for service’’ basis before we will accept an application to register your business name. If you intend to operate a “non-profit” venture, you may seek to register this as a company under the Corporations Law or as an association under the Associations Incorporation Act. We cannot register your business name where your application is lodged more than two months earlier than the date upon which you intend to commence business. This is because the Act does not allow or provide for the reservation of business names. An infant or a minor can be a proprietor of a business name. However, the application to register the name must indicate that the proprietor is, in fact, an infant or a minor and also state the date of birth of the person concerned. The Act does not specifically disallow an undischarged bankrupt from being a proprietor of a registered business name. We are aware however, that the Bankruptcy Act (C’wlth) requires an undischarged bankrupt to seek permission from his or her appointed trustee before setting up a business. Should you require any further information in respect to this legislation, you should contact the Insolvency & Trustee Service Australia at AMA House, 42 Macquarie Street, Barton ACT (telephone 6250 5639). The services’ website is http://law.gov.au/itsa/. There are no specific provisions in the Act in respect to a person intending to carry on business from home. Should you wish to do this however, we suggest you contact ACT BLIS for advice in respect to any permits or licences you may require. ACT BLIS is a component of Business Gateway, an initiative of the ACT Government. You may contact Business Gateway or ACT BLIS on telephone 1800 244 650 or at its website address www.business.gateway.act.gov.au. for further advice. We are aware that if you wish to carry on business as a hairdresser or a motor vehicle repairer you may require the issue of a licence or permit before you are legally able to commence work. This situation may apply in respect to other home based businesses. Where you intend to register a business name which is part of a franchise agreement or network, you should lodge a copy of consent from the franchisee with your application. This consent should formally consent to the registration of the name under the Act and be signed by the franchisee or an authorised signatory for the franchisee. 18 February 2003 Business Names Manual The Act does not provide for preferential treatment on the basis that the name is required to be registered under a franchising agreement. Accordingly, if there are other similar names registered as ACT business names or companies, the name may not be available for registration, irrespective of the franchise situation. A trust may be a proprietor of a business name. However the name of the trustee must appear on the application as well as the name of the trust (eg. John Smith as trustee of the J Smith Family Trust). The trustee must sign the application on behalf of the trust. You should also be aware that the words “trust” and “trustee” are restricted for use under the Corporations Law and therefore require Ministerial consent prior to registration. 2.6 PERMITS AND LICENCES Where you are seeking to register a name which implies that you offer a professional service (eg. a legal or medical practitioner, a physiotherapist etc.) we will ask to see: • proof of your qualification to do the work; and, • evidence of your current registration by the particular governing authority. Whilst registration of a business name allows you to carry on business under the registered name in the Territory, such registration does not provide you with any licence or authority to carry on a particular activity (eg as a plumber or electrician). You should contact ACT BLIS for advice as to whether or not you require a licence for your business. 18 February 2003 Business Names Manual CHAPTER 3 THE NAMING PROCESS 3.1 LEGISLATIVE PROVISIONS The Act allows us to decline to register a business name which is undesirable or which is a name (or name of a kind) that is restricted under the Corporations Law. The Corporations Law (C’wlth) includes a number of words and phrases which are restricted for use in registered company names. These words and phrases are restricted because, in most cases, the word or phrase is normally associated with a particular occupation regulated by other legislation. Unrestricted use of the particular word or phrase in a registered company or business name could incorrectly suggest approval under the terms of the governing legislation. Such a situation is undesirable. These words and phrases are similarly restricted in terms of business names registered under the Act. This is because the Heads of Agreement (“Alice Springs Agreement”) in 1990 resulted in an agreement to include provisions in the then Corporations Act (C’wlth) to decline to register company names which were identical to state and territory registered business name. The decision was also taken to similarly restrict the usage, in registered business names, of selected words and phrases already restricted under the Corporations Act (now the Corporations Law) in business names. This situation followed on from consultation and liaison with the then Australian Securities Commission which was responsible for the registration of corporations under that legislation. The decision was seen as appropriate to and consistent with the commitment to maintain a national business names record of corporations registered nationally and also business names registered under state and territory legislation. Registration of names, which are undesirable or restricted under the Corporations Law, will only be allowed following the granting of Ministerial consent. Additionally, some words and phrases which are restricted under the Corporations Law also require consent from a particular Federal Minister, before registration may be considered. If you intend to apply to register a business name which includes one of these words or phrases you need to firstly seek the consent of the particular Federal Minister. You may then lodge your application together with the consent and the consent fee. We will then follow up on the issue of Ministerial consent (see below). Words and phrases which are restricted under the Corporations Law are included in the listing at the end of this manual. The listing indicates which words and phrases require Ministerial consent and those which also require consent from a Federal Minister. 18 February 2003 Business Names Manual 3.2 MINISTERIAL CONSENT Ministerial consent means the consent of the ACT Minister for Justice and Community Safety. The Act allows you to seek Ministerial consent to the registration of a business name which we regard as unacceptable for registration. This includes names which we have assessed as undesirable and also names which include words and phrases which are restricted under the Corporations Law, the Defence (Prohibited Words and Letters) Regulations or under Ministerial Direction. These words and phrases are included in the listing at the end of this manual. Where you elect to seek Ministerial consent you should prepare a written submission setting out the facts of the situation and why you consider the Minister should consent to the registration of the name. This submission should be lodged with the office together with the required fee. You should remember that some names which include words or phrases restricted under the Corporations Law also require consent from a Federal minister. In these circumstances, you need to seek this consent before lodging your application. We will then refer the matter to the Chief Executive of the Department of Justice and Community Safety for decision. The Chief Executive has the delegation to give such consent. We will let the applicant know as soon as a decision is made. 3.3 UNDESIRABLE NAMES Undesirable names include those which: • are identical or similar to a business name registered in the Territory or a corporation registered under the Corporations Law; • could be seen as offensive by a reasonable member of the public or a particular section of the community; • suggest a connection with the Commonwealth or a state or territory government, or the Royal Family; • are misleading in terms of the actual nature of business to be performed under the business name; • have been restricted by Ministerial Direction (see above), or • are calculated to deceive. Words and phrases which we regard as undesirable are included in a listing at the end of this manual. 3.4 THE SUBJECTIVE TESTING POLICY When we assess the similarity of a name requested for registration we employ a subjective testing policy. This policy is, necessarily, relatively strict because the ACT market sector is relatively small and insular in comparison with other Australian states and territories. It is also largely service oriented. There have been actual situations where names similar to those already registered have caused confusion among suppliers and the local industry. These situations have lead to disputes between competitive businesses. 18 February 2003 Business Names Manual Such situations have proven to be unfortunate and regrettable and ones which, in hindsight, should not have been allowed to occur. For these reasons, our policy is to refrain from registering business names where there is any perceived potential for the name to cause confusion with other registered ACT business or company names. This is irrespective of whether or not the name requested has been registered in other jurisdictions. 3.5 SIMILAR NAMES We regard a name as undesirable where the name is sufficiently similar to another registered name to be capable of being confused by a reasonable member of the public. In this respect, we pay particular attention to coined or connived words forming part of a requested name. Coined or connived words include those which do not appear within a dictionary or which are not part of everyday usage. Words such as “Montex” and Quedub” are examples of such words. Where similar names are already registered (including names which include coined words or phrases) we may decline to register the name. This is unless we consider that there is no likely potential for confusion between the names. We also take into account the situation in respect to “passing-of’ on the reputation and good will of another business entity (refer Chapter 5.5 of this manual). Where we decide that a name is too similar to an already registered name you may, of course, qualify the name to reduce the potential for confusion. Alternatively, you are free to approach the proprietor of the registered name to seek formal consent to the registration of the particular name you require. 3.6 IDENTICAL NAMES We will not register a name which is identical to another ACT business name. We may register a business name which is identical to a registered company name where no similar names are registered as companies or ACT business names, if: • the company is to be the registered proprietor; or, • the company is not to be the registered proprietor, and obtains ministerial consent together with consent from the company. This office would not support ministerial consent unless the applicant is able to establish a corporate connection between the company, and the proposed proprietor. 3.7 OTHER RESTRICTED WORDS AND PHRASES The Boy Scout’s Association Act 1924 (C/wlth) prohibits unauthorised use of the name “the Boy Scout Association” or any other name which implies an endorsement by or affiliation with the Association or a branch of the Association. We will not therefore register names which include the phrase “boy scout” or similar words or phrases without the authority of the Scout Association of Australia Incorporated. 18 February 2003 Business Names Manual Also restricted are names which suggest a connection with an ex-servicemen’s association or that its members are totally or partially incapacitated through active service. Names which include the words “Anzac”, “ex-servicemen’, “Returned Soldier”, “blind” or “blinded’ are not therefore generally available for use in a registered business name. The word “Anzac” is restricted under the Corporations Law and requires Ministerial consent and also consent from the Federal Minister for Veteran’s Affairs before it may be used in a registered business name. Names which are prefixed with the initials ‘A.A’ etc to gain to gain prominence in directories are regarded as undesirable. Applications will be refused if a prefix to the requested name includes more than three ‘A’s (not including the first initial of a surname or other word in the name). We also have a number of words and phrases which we generally regard as undesirable for use in business names. This is because of the potential of the word or phrase to be misleading or to cause confusion in terms of the business to be performed under the name. These words and phrases are included in the listing which appears at the end of this manual. 3.8 HERITAGE COUNCIL LISTINGS We will also not register names where the name could be seen as associated with a place included in the ACT Heritage Council Listings. You may contact the Heritage Unit, Environment ACT for further advice about names currently appearing on the listing. The address of the Heritage Unit is PO Box 144, Lyneham ACT 2602. The Unit’s website address is www.act.gov.au/environ. 3.9 DEFENCE FORCES REGULATIONS The Defence (Prohibited Words and Letters) Regulations prohibit the use of words or letters which indicate a part of the Naval, Military or Air Forces of the Queen’s dominions or a service associated with the defence of the Commonwealth. These words and letters are included in the listing at the end of this manual. If you intend to use any of these words or letter combinations in your business name you must first seek consent from the Federal Minister for Defence. Ministerial consent is also required. 3.10 MINISTERIAL DIRECTIONS The Minister has agreed to regard certain words and phrases as undesirable for use in registered business names. These words and phrases, which are usually associated with a particular function or event, are restricted for use in business names without Ministerial consent . Examples of words and phrases thus restricted by Ministerial direction are included in the listing at the end of this manual. 18 February 2003 Business Names Manual CHAPTER 4 ONCE THE BUSINESS NAME IS REGISTERED 4.1 INDEXING AND SCANNING All documents lodged with the office under the Act are allocated a bar coded unique file number. An electronic scanner then scans the document. This creates a computerised image of the document. The document is then allocated a further reference number according to the document type and indexed. At this point the document is now officially recorded in the Register of Business Names and is available for public search. Once the document has been scanned and indexed it is verified to ensure that all registered details are on the system. The hard copy of the document is then destroyed. Once the document has been scanned and indexed, we can generate a copy of the document upon request and also a database extract showing the registered details of the business name. The extract is the official record of registration of the business name and may be produced in a court of law. We charge a fee to produce a business name extract. 4.2 DISPLAYING YOUR BUSINESS NAME You are required to exhibit your certificate of registration of your business name at the principal place of business nominated in your application. Where there is more than one place of business, the certificate must be exhibited at the principal place of business. You must also ensure that your business name is displayed in a conspicuous position on the outside of every place at which you carry on business under the name. You are also required to ensure that your registered business name appears in legible characters on any business letter, statement of account, invoice, official notice, publication, order for goods or receipt to do with the carrying on of your business; 4.3 CHANGES TO REGISTERED PARTICULARS You may change any particulars of your business name other than the actual registered name. Should you elect to change any of the registered particulars, you need to complete a “Particulars of Business Name” (BP) form and lodge the form with the office together with the appropriate fee (refer Chapter 2.4). All current proprietors must sign the form. We will then update the Register of Business Names. Where changes to registered particulars occur, you need to make sure that the BP form is lodged within 14 days after the date of the change, together with the prescribed fee. This is to ensure that the Register is updated as soon as possible. Where the form is lodged more than 14 days after the date of change, late fees are payable. The Schedule of Fees which is included at the end of this manual sets out the current fees to amend the particulars of a registered business names and also the current late fees. 18 February 2003 Business Names Manual 4.4 RENEWAL OF REGISTRATION The registration of a business name remains in force for three years and is then subject to renewal. We will send a notice of renewal of registration to the postal address nominated in the Register of Business Names one month before the date of expiry of registration. You need to complete all the particulars on the form even if these have not changed since the last renewal. Your completion of these details is particularly important if any changes have occurred to the registered particulars of which we are not aware (such as a change of address etc.). The completed renewal notice must be lodged with the office no late than one month after the registration expires to allow us to renew the registration of the name. After that time, the registration will automatically lapse and the name is available to anyone to apply to register. We cannot give any guarantee that a name will be available for registration to a previous proprietor, once its registration has lapsed. Where the proprietors of the business names have changed, you may notify details of these changes on the renewal notice. However, you need to clearly indicate on the notice the names and addresses of all proprietors who: • have ceased to be registered proprietors; • have commenced as registered proprietors; and, • are continuing on as registered proprietors. Where any such changes occur in respect to the proprietors of the business name, all proprietors must sign the notice. This includes all proprietors who are commencing, ceasing or continuing to carry on business under the name. Where no changes have occurred to the proprietors, the renewal notice must be signed at least one current proprietor and lodged with the office together with the correct fee (refer to the current Schedule of Fees and Charges at the end of this manual). You may lodge the notice by facsimile and endorse your credit card details on the bottom of the notice. 4.5 CESSATION OF REGISTRATION You may cease the registration of your business name at any time by lodging a “Notice of Cessation of Business Name” (Form A5). These forms are available from the office and a copy of the form is included at the end of this document. We do not charge a fee to lodge these forms. However, all registered proprietors of the business name must sign the form, before registration is ceased. 4.6 CANCELLATION OF REGISTRATION We may proceed to cancel the registration of your business name where we are not satisfied that: • you are carrying on business under the business name; or, • all of the registered particulars of the business name are correct. 18 February 2003 Business Names Manual We may also proceed to cancel registration where the name was registered through inadvertence. In this context, the term ‘inadvertence’ means that the name was registered through inattention or heedlessness on the part of the office. We also regard a business name as having been registered through inadvertence where we subsequently discover that the name incorrectly or mistakenly suggests or infers a function or activity performed by a competitive business enterprise. This situation applies whether or not we consider that the decision to apply to register the name was deliberately intended to suggest or infer this. 18 February 2003 Business Names Manual OTHER ISSUES CHAPTER 5 5.1 GOODS AND SERVICES TAX We cannot provide advice concerning your obligations and commitments as a business name proprietor, in terms of the Goods and Services Tax (GST) or the Australian Business Register (ABR). You may however, contact the Australian Taxation Office on telephone number 132478 or at its website address www.taxreform.ato.gov.au for information and advice in this respect. We will not however, register a business name which implies or infers that the business has a connection or affiliation with a Government agency responsible for the administration of the GST or ABR. For these reasons, there are a number of words and phrases which we have been asked to not include in names which we register. These words and phrases are included in the listing at the end of this manual. 5.2 PATENTS AND TRADEMARKS Registration of a business name offers no protection in terms of the existence of a registered trademark. Registration of a trademark gives the owner the legal right to exclusively use or control the use of the mark for the goods or services for which it is registered. However, registration of a business name provides no proprietary rights other than the right to carry on business in the Territory under the name. We cannot therefore help you if you register a business name which is later challenged as infringing a registered trademark. We therefore strongly advise intending applicants to check the trade marks database before applying to us to register a business name. IP Australia administers this database. You may contact IP Australia on telephone 6283 2999 or at its webside address http://www.ipaustralia.gov.au to discuss the registration of a trademark. 5.3 PROPRIETARY RIGHTS You need to be aware that a business name is not a legal entity. Similarly, the registration of a business name does not create or confer any proprietary or ownership rights in respect to the use of the name or of any particular words or phrases in the name. If you are seeking such protection you should contact IP Australia with a view to registering the name as a trademark (see Chapter 5.2). 5.4 TRADING BETWEEN JURISDICTIONS (CROSS BORDER TRADING) There are no provisions in place at the present time to allow you to carry on business simultaneously in (say) Canberra and Queanbeyan. This is because business names are registered under legislation enacted in the particular Australian state or territory in which the business actually takes place. There are presently no reciprocal arrangements in force to 18 February 2003 Business Names Manual allow mutual or simultaneous registration of names in two or more jurisdictions. We are however, discussing this issue with the NSW Department of Fair Trading which is responsible for the registration of business names in NSW. You are of course, free to apply to register the name in both jurisdictions. Should you wish to apply to register a name in NSW you may contact the NSW Department of Fair Trading on telephone 13 3220. The Queanbeyan office of the Department is at 110/112 Monaro Street, Queanbeyan NSW 2620 telephone 6299 3433. You may also contact that Department at its website address at www.fairtrading.nsw.gov.au. You may also consider applying to register the name as a company under the Corporations Law. The Australian Securities and Investments Commission is responsible for the registration of companies under the Law. The Commission’s Canberra office is located at Level 5, 15 London Circuit, Canberra City ACT (telephone 6250 3850). You may also contact the Commission at its website address http://www.asic.gov.au. 5.5 TRADING PRACTICES We cannot provide you with advice in respect to setting up your business enterprise. However, Business Gateway can provide you with a range of general business information about setting up business in the Territory. This includes information about the ACT Government’s business policy and programs and also details of incentives and support available to assist small business. You should also be aware that laws exist to protect an established trade or business. Such laws seek to prevent an entity from carrying on business in such a manner as to represent itself as being representative of or connected with another established business entity. These laws similarly are intended to prevent misleading and deceptive conduct in business dealings. They include situations of “passing off” on the name and reputation of another person or business entity. You need to be aware of the provisions of the Trade Practices Act (C’wlth) and the Fair Trading Act (ACT) which are relevant to these situations. You should also be aware that registration of a business name under the Act offers no protection or recourse against legal action subsequently initiated against your business under the terms of such legislation. 5.6 RESOLUTION OF DISPUTES The Act does not provide any avenue for the resolution of disputes arising through the registration of a business name or through carrying on business under the name. Similarly the Act does not provide any redress in respect to the rights of claimants trading under similar names, irrespective of whether or not the names are registered under the Act. There is also no avenue of appeal under the Act to the Administrative Appeals tribunal by parties aggrieved by decisions taken to register (or not register) business names. Such matters may however, be considered by the courts. 18 February 2003 Business Names Manual SCHEDULE 1 WORDS AND PHRASES RESTRICTED FOR USE IN REGISTERED BUSINESS NAMES WORD/PHRASE Aboriginal Corporation Aboriginal Council Accredited REASON Restricted under Corporations Law Restricted under Corporations Law Undesirable as tending to infer that the persons are registered or receiving official recognition in the field in which they are carrying on business. Possible connection to Government Authority involved with Goods & Services Tax Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Misleading as tending to infer non-commercial status. If it appears as the first word in a name it would not be Undesirable, eg. ‘Alliance Finance’. Undesirable without prior approval of Veterinary Surgeons Registration Board Restricted under Corporations Law Undesirable as tending to infer that the persons are registered or receiving official recognition in the field in which they are carrying on business. Misleading as tending to infer non-commercial status. Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence ACTION REQUIRED Ministerial consent Ministerial consent Registrar-General’s approval Advisory Board for a New Tax System Air Force Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Air Force Emergency Force (or AFEF) Alliance Animal Hospital Anzac Registrar-General’s approval Consent from Minister for Veterans’ Affairs and Ministerial consent Registrar-General’s approval Approved Association Australian Air Force Reserve (or AAFR) Australian Army Reserve Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Australian Flying Corps (or AFC) Australian Imperial Force (or AIF) Australian Military Forces (or AMF) Australian Regular Army 18 February 2003 Business Names Manual (or ARA) Australian Standard Authorised Ayers Rock to Darwin Cannonball Run Bank, banker, banking (or words having the same or similar meaning), BANTS (Prohibited Words and Letters) Regulations Undesirable in view of unincorporated body “Standards Association of Australia”. See “accredited”. Restricted by Ministerial direction Restricted under Corporations Law Possible connection to Government Authority involved with Goods & Services Tax Undesirable as suggesting connection with the Australian Government in relation to its involvement in Bicentennial celebrations. Possible connection to Government Authority involved with Goods & Services Tax Ministerial consent Registrar-General’s approval Registrar-General’s approval Ministerial consent Consent from the Federal Treasurer and Ministerial consent Registrar-General’s approval Bicentenary Bicentennial, Board for a New tax System, The Registrar-General’s approval Registrar-General’s approval Board for a New Tax System Possible connection to Government Office Authority involved with Goods & Services Tax Boy Scout Building Society Bureau Business Cooperation Restricted under Boy Scout’s Association act 1924 (C’wlth) Restricted under Corporations Law Undesirable as suggesting connection with a Government or local authority. Misleading as tending to suggest connection Committee with the Associated Chamber of Manufacturers of Australia. Restricted by Ministerial direction Restricted by Ministerial direction Undesirable when used in a context suggesting an activity which is not legal. See “accredited” Restricted under Corporations Law Restricted under Corporations Law Undesirable except in the case of an authorised agency. Restricted under Corporations Law Undesirable as suggesting connection with a Government Department or local authority. Misleading in certain cases as tending to infer non-commercial status. Registrar-General’s approval Consent from Scout Association of Australia Ministerial consent Registrar-General’s approval Registrar-General’s approval Canberra Rally Canberra International Rally Casino Certified Chamber of Commerce Chamber of Manufacturers Charity Chartered Clinic Club Ministerial consent Ministerial consent Registrar-General’s approval Registrar-General’s approval Ministerial consent Ministerial consent Registrar-General’s approval Ministerial consent Registrar-General’s approval Registrar-General’s approval 18 February 2003 Business Names Manual College of Advanced Education Commonwealth Community Confederation Conference Congress Consumer Co-operative Council Corporation Credit Union Crown Restricted under Corporations Law Misleading: suggests a connection with the Australian government Misleading; infers non-commercial status Misleading: infers non-commercial status Misleading: infers non-commercial status Misleading: infers non-commercial status Restricted under Corporations Law Restricted under Corporations Law Misleading: infer non-commercial status Misleading: infers corporate status Restricted under Corporations Law Undesirable; suggests a connection with royalty Restricted by Ministerial Direction Prohibited under the Defence (Prohibited Words and Letters) Regulations Misleading: suggests connection with the Queen’s dominions Restricted under Corporations Law Undesirable as suggesting connection with a Government Department or local authority. Undesirable as suggesting connection with a Government Department or local authority. Undesirable: suggests a connection with the Australian government Misleading: infers non-commercial status Misleading if it implies financial stability. Misleading: infers non-commercial status Restricted under Corporations Law Misleading: infers non-commercial status Undesirable when used in a context suggesting an activity which is not legal. Restricted under Corporations Law Possible connection to Government Authority involved with Goods & Services Tax Ministerial consent Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Ministerial consent Ministerial consent Registrar-General’s approval Registrar-General’s approval Ministerial consent Registrar-General’s approval Darwin to Ayers Rock Cannonball Run Defence Force Empire Executor Family Relationship Advice Line Family Relationship Centre Federal Federation Fidelity Foundation Friendly Society Fund Gambling Geneva Cross Goods and Services Tax Ministerial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Ministerial consent Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Ministerial consent Registrar-General’s approval Registrar-General’s approval Consent from Minister for Defence and Ministerial consent Registrar-General’s approval 18 February 2003 Business Names Manual Goods Services Tax Possible connection to Government Authority involved with Goods & Services Tax Undesirable where the business is carried by a sole proprietor. Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority involved with Goods & Services Tax Restricted under Corporations Law Misleading as tending to infer noncommercial status. Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Undesirable as it is the name of a missile used by the Australian Forces Undesirable: suggests connection with Australian or British governments Restricted under Corporations Law Misleading as tending to infer noncommercial status Restricted under Corporations Law Registrar-General’s approval Group GST (or G.S.T.) Registrar-General’s approval Registrar-General’s approval GST Assistance Registrar-General’s approval GST (or G.S.T.) Office GST Start-Up Systems Office Guarantee Guild Her Majesty’s Australian Ship (or HMAS) Her Majesty’s Australian Ships (or HMA Ships) Ikara Imperial Incorporated Institute Institute of Advanced Education Registrar-General’s approval Registrar-General’s approval Ministerial consent Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Registrar-General’s approval Ministerial consent Registrar-General’s approval Ministerial consent International Rally of Canberra Restricted by Ministerial Direction Jindivic Jumping Jacks Jumpin Jacks Jumping Jack, Jumping Jacks King League, Legion Undesirable as it is the name of a missile used by the Australian Forces Restricted by Ministerial Direction Ministerial consent Registrar-General’s approval Ministerial consent Undesirable: suggests a connection with royalty Misleading as tending to infer noncommercial status Misleading as tending to infer non- Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval 18 February 2003 Business Names Manual commercial status Licensed Undesirable as tending to infer that the persons are registered or receiving some form of official recognition, in the field in which they are carrying on business Undesirable unless person proposed to be registered is a corporate body and the name of that body is included in the name eg. Charlie a Division of Charlie Industries Sales Pty. Limited Undesirable except in the case of an authorised agency. Restricted under Corporations Law See “Jindivic” See ”Confederation” Restricted by Ministerial direction Undesirable: suggests connection with Australian government Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority involved with Goods & Services Tax Undesirable as suggesting corporate status Misleading as tending to infer noncommercial status. Registrar-General’s approval Limited Registrar-General’s approval Lottery Registrar-General’s approval Made in Australia Malkara Movement Mugga Mugga National Naval Ministerial consent Registrar-General’s approval Registrar-General’s approval Ministerial consent Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Naval Emergency Reserve Forces (or NERF) Naval Forces Navy New Tax System Board New Tax System Office No Liability Organisation Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Olympic, Olympiad, Undesirable unless approved by Olympian Australian Olympic Committee Registrar-General’s approval The ASIC will probably direct that protected Olympic Insignia be prevented from being included in a company name. The Registrar-General would consider any unauthorised use of these terms undesirable. Consent by Minister for Defence and Ministerial consent Permanent Air Force (or PAF) Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence Permanent Military Forces Consent by Minister for Defence and 18 February 2003 Business Names Manual (Prohibited Words and Letters) Regulations Permanent Naval Forces Prohibited under the Defence (Prohibited Words and Letters) Regulations Undesirable if used in a context suggesting Government support eg. “Truck Pool” See “No Liability” Undesirable: suggests a connection with royalty Prohibited under the Defence (Prohibited Words and Letters) Regulations Undesirable except in the case of an authorised Agency or Art Union. Restricted by Ministerial direction Restricted under Corporations Law Undesirable as tending to infer that the persons are registered or receiving some form of official recognition in the field in which they are carrying on business. Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Undesirable: suggests a connection with royalty Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Prohibited under the Defence (Prohibited Words and Letters) Regulations Restricted under Corporations Law Restricted under Corporations Law Misleading as tending to infer nonMinisterial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Pool Proprietary Queen RAAF Raffles Rally of Canberra Red Crescent Red Cross Red Lion and Sun Registered Ministerial consent Consent from Minister for Defence and Ministerial consent Registrar-General’s approval Regular Army Emergency Reserve Regular Army Supplement Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Registrar-General’s approval Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Consent by Minister for Defence and Ministerial consent Ministerial consent Consent from the Federal Treasurer and Ministerial consent Registrar-General’s approval Reserve Royal Royal Australian Air Force (or RAAF) Royal Australian Fleet Reserve (or RAFR) Royal Australian Naval Reserve (or RANH) Royal Australian Navy (or RAN) Savings Savings Bank Society 18 February 2003 Business Names Manual commercial status. Starr Bowkett Start-Up Office Restricted under Corporations Law Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority responsible for Goods & Services Tax Undesirable: suggests connection with an Australian state government Restricted under Corporations Law Undesirable if only one proprietor of business name. Misleading: suggests connection with Australian Territory government Possible connection to Government Authority Possible connection to Government Authority involved with Goods & Services Tax Possible connection to Government Authority involved with Goods & Services Tax Restricted under Corporations Law Restricted under Corporations Law See “Confederation” Restricted under Corporations Law Restricted under Corporations Law Undesirable as suggesting a corporate status Ministerial consent Registrar-General’s approval Start-Up Systems Office Registrar-General’s approval State Stock Exchange Syndicate Territory The GST Office The New Tax System Board Office Registrar-General’s approval Ministerial consent Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval Registrar-General’s approval The Start-Up Office Registrar-General’s approval Torres Strait Islander Corporation Trust, trustee Union United Nations University Unlimited Ministerial consent Ministerial consent Registrar-General’s approval Consent from Minister for Foreign Affairs and Trade and Ministerial consent Ministerial consent Registrar-General’s approval 18 February 2003 Business Names Manual GLOSSARY OF TERMS “Act” • means the ACT Business Names Act 1963. “Business” • includes all business activities undertaken for profit and gain and includes trades and professions. “Carry on Business” • includes establishing a place of business and soliciting or procuring any order from a person in the Territory. “Corporation” • means a corporation so regarded under the Corporations Law or some other legislation. “Document” • means a document required to be lodged with the office under the Act. “Fee” • means a fee prescribed under the Act and refers to the fee presently required to be paid. “Infant” • means a person under the age of eighteen years of age. “Minister” • means the ACT Minister for Justice and Community Safety or a person delegated to perform the functions of the Minister as defined in the Act. “Ministerial consent” • means the consent of the Minister to the registration of a business name under the Act. “Proprietor” • means the registered proprietor of a registered business name and includes a private individual and a corporation. “Qualify” • means to qualify your personal name by any addition or modification. “Register” • means the Register of Business Names maintained under the Act. “Registrar-General” • means a person delegated under the Registrar-General Act 1993 to perform the function of the Registrar-General as defined in the Act. 18 February 2003 Business Names Manual “Subjective testing policy” • means the policy employed by the Registrar-General’s Office in assessing the desirability of a name for registration under the Act. “Territory” • means all geographical, commercial and residential areas within the Australian Capital Territory including Jervis Bay. 18 February 2003 Business Names Manual INDEX SUBJECT ‘AAA’, Names including ACT BLIS Advertising under business name Bankrupts, as proprietors of business names Boy scout Business Gateway Cancellation of Registration Cessation of Registration Changes to Registered Particulars Coined or connived words and phrases Cross border trading Defence Forces Regulations Displaying business name Disputes, resolution of Domain names Exemptions (from the need to register a business name) Ex-servicemen, ex-servicemen’s associations Fees Franchises, franchising agreements Freedom of Information Glossary of terms Goods and Services Tax Heritage Council Listings Home based business Identical names Illegal activities Indexing/scanning of documents 2.3, 4.2 2.5 3.7, Schedule 1 2.5 4.6 4.5 4.3 3.5 5.4 3.9, Schedule 1 4.2 5.6 2.1 2.2 3.7 2.4, Schedule 2 1.5 Introduction Attachment 1 5.1 3.8 2.5 3.6 2.5 4.1 CHAPTER 3.7 2.6 18 February 2003 Business Names Manual Infant, as a proprietors of a business name Legislation Licences Ministerial consent Ministerial Directions Minor, as proprietors of a business name ‘Non-profit’ organisations Office Staff, contacts ‘One off’ transactions Paralympic Games Passing-off Patents Period of registration Permits Professional occupations Proprietary rights Requirement to register name Renewal of registration Resident agent Resolution of disputes Restricted Words and Phrases Scanning/Indexing of Documents Similar Names Subjective Testing Policy Trademarks Trading between jurisdictions Trading practices Trusts, trustees Undesirable names 2.5 1.1, 3.1 2.6 3.2 3.11 2.5 2.5 Introduction 2.2 3.10, Schedule 1 5.5 5.2 4.4 2.6 2.6 5.3 2.2 4.4 2.3 5.6 3.1, 3.5, 3.7, Schedule 1 4.1 3.5 3.5 5.2 5.4 5.5 2.5 3.3 18 February 2003