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Trading names used to be an acceptable way of identifying your business. However, changes introduced by the Australian Securities and Investments Commission (ASIC) have rendered ‘trading names’ to be a thing of the past.
Trading names have been replaced with business names, meaning all businesses must register their business name. The process is relatively easy and the benefits are far greater than the risk of having a business name that does not appear on the national register. There are a few exceptions to this rule, which we’ll discuss below.
Additionally, if you are looking to get your business name registered, then you might be considering how trademarking and copyright impacts your businesses identity.
Read on to find out more.
Trading Name vs Business Name
A trading name refers to a name that a business uses that is not officially registered. The National Business Names Register commenced on the 28th of May 2012. Since then, all trading names must be registered as a business name.
Therefore, you must register your trading name. Registering with ASIC will give you a business name, since trading names are no longer used in Australia.
Does A Business Name Need To Be Registered?
If you continue to use a business name that is not registered, you are likely in breach of the Business Names Registration Act 2011. The safest option is to register your business name with ASIC to ensure your business is legally recognised under the Corporations Act 2001.
Not having a registered business name can also lead to being contacted by ASIC, prompting you to register your business name. Additionally, the Australian Business Register lists all businesses that are legally registered. If another business or consumer looks up your business to find it is not registered, it doesn’t exactly look great and can deter consumers.
How Do I Register A Business Name?
Registering a business name is a simple process that can be done online on the ASIC website. First, you will need to check whether the name you want is available (you can do this through an ASIC Search). If not, keep trying variations of the name or different names until you hit one that works.
Once you have selected a business name, you will then proceed to fill out the relevant details.
To register a business name, it costs $37 for one year or $88 for three years. After the expired time, you will need to update your registration.
Once you have submitted your application and it is processed, you will receive an email confirming the registrations of your business name. Our expert lawyers at Sprintlaw can assist you with the registration process.
Can I Trade Under My Own Name?
There is one exception to the rule of registering your business name. If you are using your own name for your business, then there is no need to register your business. If you operate your business as a sole trader or are in a partnership, then using your own names will exempt you from needing to officially register your name.
If you do not wish to use your own name, then you must register a business name.
| Example For example, ‘Jane Doe’ is starting her clothing manufacturing business as a sole trader. If she simply chooses to operate under Jane Doe, then there is no need for her to register her business name. However, if Jane wishes to operate under ‘JD Clothing” she will need to register her business name with ASIC. |
Do I Need To Register Anything Else Such As Trademarks?
Taxes
When you are applying to register your business name, there is the option to apply for relevant taxes. These include:
- Goods and Services Tax (GST)
- Fringe Benefits
- Pay As You Go (PAYG) Withholding
- Wine Equalisation Tax
- Luxury Car Tax
- Fuel Tax Credits
The taxes that are relevant to you will depend on your business. It is possible a few of these are relevant or none at all.
| Example For example, if your business has more than $75,000 in profits every year, then you might need to register for GST. If your business distributes alcohol such as wine, the wine equalisation tax may be applicable. |
Trademarks
If your business has a logo, slogan or even a signature colour that is essential to marking your brand, then you’d need to Register A Trade Mark. When you register a business name, it is not automatically protected in the same way as trade marks, so you’d need to chat to a lawyer about your options around this.
If you would like to register a trade mark, you must first determine that it is different enough to set your brand apart from competitors. Cadbury Chocolates won a legal battle where they were able to trademark a specific shade of purple, preventing other chocolate sellers from using the same and potentially confusing consumers.
A trademark will stop your competitors from using the same designs that are exclusively associated with your business.
To register a trade mark, you must submit an application with IP Australia. If it is successful, the trademark will be yours for the next ten years. The process can take up to seven months and is rather complicated -our IP Lawyers at Sprintlaw can ensure this goes smoothly.
Isn’t My Trademark Protected by Copyright Laws?
No, a trademark is not protected under copyright laws. Copyright prevents an original body of work from being plagiarised. Copyright does not need to be registered, it is applied automatically to any tangible work that has been created from scratch.
For example, if you were to write a novel, copyright laws are automatically applied to your work, not allowing anyone else to copy it and claim it as their own.
A trademark, however, sets your business apart from others and prevents other people from using it to promote their own products. In order for your trademark to embody this function, it has to be registered through IP Australia.
Key Takeaways
A trading name is no longer an acceptable title to operate your business under. In order for your business to be fully functional under the eyes of the law, you will need to register a business name.
It is important to keep in mind that registering a business name does not mean you have registered a trademark or are protected by copyright laws. These are separate matters, so it’s wise to get professional legal advice on these kinds of matters.
If you have any questions regarding the information above, talk to one of our legal consultants today. Our legal experts are available and highly qualified in intellectual property, business registration, copyright as well as much more.
Reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
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