On an almost daily basis, we are asked to clarify the operation of business name registration systems in NSW. Here are some answers to frequently asked questions.

1. What sort of name needs to be registered and where?
In NSW it is an offence to trade under a name other than your own name or your company's name without registering the name at the Department of Fair Trading. For example, if your name is Fred Smith, and you run a delicatessen, the only name you can use to trade without registering a business name is `Fred Smith's'.

You cannot add any other words or descriptors, as catchy or clever as they may be. If you are a company, you can use the company name without the "Pty Limited". Trading under your own company name gives you automatic rights to trade under the business name in all Australian jurisdictions. Otherwise, you may need to register your business name individually in each State in which you want to trade. Keep in mind that the different Departments of Fair Trading in each state may have different registration requirements!

2. Why is there a Business Name Register?
The objective of the register kept by the Department of Fair Trading is to allow consumers to know who is actually "behind the business" and to prevent other similar businesses from copying your name. This is not for your benefit but to avoid confusion for the consumer.

3. Can You Register a Company having the Same Name as an Existing Business Name?
We were recently specifically asked by someone who had already registered their business name, whether or not they could register a company which had the same name as a business name already registered in NSW. The short answer is yes - but only if you obtain the consent of the owner of the business name, and in this circumstance you will need to make a statement declaring that you have obtained the necessary consent.

4. What Other Searches Should I Conduct?
Before deciding on and registering a business name, it is also a good idea to conduct a search of the register of Trade Marks held with IP Australia because you may find yourself in breach of trade marks and/or trade practices legislation if you use a name or logo that is registered or protected. The Departments of Fair Trading in each state will not search the registers on your behalf.

5. What Can't Be Put Into A Business Name?
There are other words and inferences that you are not allowed to use in a registered business or company name. False allusions to Royalty or Government are not allowed, nor are some "undesirable" words or foreign language characters. There is still plenty of room for creativity though.

6. Do I Own My Business Name?
No, you don't own the business name you register - it is licensed to you by the Business Names Registrar at the Department of Fair Trading. The Registrar can revoke the license if, for example, the persons under whose name the business name is registered have not carried on business in NSW during the two months immediately previous and the Director General is of the view that those persons do not intend trading the business name in NSW in the immediate future.

7. How Often Do I Need to Renew My Registration?
Registration is valid for a period of three years and must be renewed before the expiry date. The cost of registration at the date of this article is $129. The fee is not refundable if the name is cancelled or deregistered before the end of this period.

8. What If I Sell My Business?
If you sell your business, your registered business name can be transferred to the purchaser at no cost.

9. Where Can I Find Further Information?
Either, by dropping us an email, or visiting the Department of Fair Trading's website, which is an excellent resource if you have further questions: http://www.fairtrading.nsw.gov.au

Provided by Townsends Business & Corporate Lawyers www.townsendslaw.com.au

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