Business Names Registration Act 2011

The Act applies to any entity carrying on a business in Australia under a name that is not the entity's own name. This includes sole traders trading under a different name from their personal name, partnerships using a partnership name, companies using a name other than the registered company name, trustees of trusts using a trust name in business, joint venturers using a joint venture name, and unincorporated associations.

ASIC, as the registry authority, is centrally affected. ASIC's Registrar (appointed under section 62A) administers the Register and exercises the powers in Part 9, including the disclosure framework in section 62L and the protection of confidentiality of protected information in section 62M.

State and Territory regulators continue to have a concurrent role: section 12 expressly preserves the concurrent operation of any law of a referring or adopting State or affected Territory, including laws that require registration of a business name for purposes other than this Act (such as fair trading and consumer protection regulators in States like New South Wales).

Holders of registered trade marks are affected: section 51 confers on courts the power to order cancellation of a business name registration where the business name is used in infringement of a trade mark, as engaged in Hugo Boss AG v Hardge [2024] FCA 1325 and considered on the cross-appeal in Christian v Société des Produits Nestlé SA [2015] FCAFC 153.

The four central offences under Part 2 set the day-to-day compliance map for any business operating under a registered name.

Section 18 makes it an offence for an entity to carry on a business under a name that is not registered to that entity. The offence is the foundation of the regime: trading without registering is a criminal offence.

Section 19 requires the entity to include its business name in business documents and written communications connected with the business. The offence is engaged where a business document going to another entity does not include the registered business name. The provision underpins the practical purpose of the regime, which is to allow third parties dealing with the business to identify it.

Section 20 requires the entity to display its business name prominently at every place at which it carries on the business that is open to the public. Failure is an offence.

Section 21 makes it an offence to carry on a business under a business name while the entity is disqualified from holding registered business names. The penalty is 30 penalty units. Disqualification triggers other consequences, including cancellation under section 44.

Beyond the criminal offences, registered entities have ongoing notification obligations under Part 4. Notifications are due to ASIC for changes in registered information (section 35), if the entity becomes disqualified (section 36), if ASIC requests information (section 37), upon bankruptcy or insolvency (section 38), upon appointment of a legal personal representative (section 39), and on succession in a deceased estate (section 40). The Federal Court may order the giving of information to ASIC under section 41.

Renewal is required at the end of the registration period (Part 6, sections 55 and following). Failure to renew leads to cancellation under section 49.

ASIC's central functions are the registration decision (section 24) and the cancellation decision under Part 5. ASIC must decide whether the name is available to the entity (section 25). The availability test asks whether the name is identical or nearly identical to a registered business name, a name reserved or registered under the Corporations Act 2001 for another body, or another category of name set out in section 25 and the rules made by the Minister under section 26.

The Minister may make legislative instruments determining the kinds of names that are undesirable (section 27) and may determine that a particular undesirable name is to be available to a particular entity (section 27(2)). The Minister may also designate restricted words and expressions under section 28.

ASIC has broad cancellation powers under sections 42 to 51. Cancellation may be on request (section 42), where ASIC becomes aware of a matter that would have affected the registration decision (section 43), where the entity is disqualified (section 44), where a Ministerial determination is revoked (section 45), where a condition of registration is not satisfied (section 46), where the entity is not carrying on a business under the name (section 47), where information has not been provided (section 48), on expiry (section 49), where the entity ceases to exist (section 50), and where a court orders cancellation in trade mark infringement proceedings (section 51).

Internal review of certain decisions is available under section 57; administrative review (to the Administrative Review Tribunal) is available under section 58. Section 59 governs payment of registration fees if a name is to be registered as a result of review.

The Registrar has powers including data standards (section 62H), how the Registrar performs and exercises functions and powers (section 62K), the disclosure framework (section 62L), confidentiality protections (section 62M), and authorisations of recording or disclosure (section 62N).

The four offences in Part 2 (sections 18 to 21) attract criminal penalties. Section 21 carries 30 penalty units. The other offences are similarly framed as fault-element or strict-liability offences with stated penalty units.

Failure to comply with a Part 4 notification obligation can lead to cancellation under section 48 and may attract penalties under the Act and the Criminal Code (Cth) where applicable.

Section 51 gives the regime real teeth in the trade mark context: when a court grants relief in a trade mark infringement action, that relief may include an order that the registration of a business name to the entity be cancelled. ASIC must cancel registration upon being lodged a copy of the court's order, ensuring that infringers cannot continue to hold the offending name on the public register.

The Federal Court may also order under section 41 that information be given to ASIC by an entity.

An application to register a business name is made to ASIC under section 23. ASIC then decides under section 24 whether to register the name to the entity. The decision is governed by the availability tests in sections 25 to 32 and refusal grounds in sections 30 (failure to pay registration fee on time), 32 (disqualified entities), and 34 (refusal to register).

Steps taken by ASIC to register a name are set out in section 33. Notifications about partnerships, unincorporated associations, trusts, and joint ventures use the special rule in section 53.

The registration period and renewal cycle are governed by Part 6. An application to renew uses section 55. Failure to renew triggers cancellation under section 49. A business name is held during the review period for a cancellation decision under section 54.

Internal review under section 57 is the first step for reviewable decisions listed in section 56. An aggrieved applicant who is dissatisfied with the internal review outcome may apply to the Administrative Review Tribunal under section 58.

The Act sits within a referral-of-powers framework. Section 7 sets out the constitutional basis. Sections 8 and 9 define the referring or adopting States and the referred business names matter. Sections 12 to 15 set out the rules for concurrent operation between this Act and State and Territory laws, including section 14 (avoiding direct inconsistency between Commonwealth and State and Territory laws) and section 15 (regulations to deal with interaction between laws).

The Trade Marks Act 1995 (Cth) interaction is the most important: registration under this Act does not affect any rights of any entity in relation to a name under the general law or any other Commonwealth, State, or Territory law (section 17). A trade mark registration may give rise to relief that includes cancellation of a business name registration (section 51).

The Corporations Act 2001 (Cth) interaction is structural: a business name cannot be registered if it is identical or nearly identical to a name reserved or registered under the Corporations Act 2001 for another body (section 25(a)(ii)).

State fair trading and consumer protection regimes continue to apply concurrently (section 12), as illustrated by State tribunals using business name particulars in consumer disputes such as McDonald v Commissioner of Fair Trading [2017] NSWCATAD 330.

The Privacy Act 1988 (Cth) interaction is dealt with by section 62Q, which authorises certain disclosures for the purposes of the Privacy Act.

Registration confers no property rights in the name. Section 17 is clear: an entity does not acquire property in a business name by registration. A trader who relies on business name registration alone, without trade mark registration, has no monopoly rights against competitors using a similar name. The Hugo Boss AG v Hardge [2024] FCA 1325 cancellation order was made because the trade mark, not the business name, conferred the protectable rights.

The "identical or nearly identical" test in sections 25 and 26 is permissive in an unintuitive direction: the Minister's rules under section 26 govern. Two names that look similar to a layperson may not be identical or nearly identical for Act purposes, and ASIC will not refuse registration on the basis of a perceived similarity outside the rules.

The carrying-on-business element of section 18 turns on what counts as carrying on a business under a particular name. A trader who uses a name only sporadically or only in a marketing context may still be caught.

The section 19 obligation to include the business name in business documents catches more than letterheads. Invoices, quotations, contractual correspondence, and electronic communications all qualify if they are business documents connected with carrying on the business.

Disqualification (section 21 and section 44) is a serious consequence that bites across all business names held by the entity, not just one. An entity that becomes disqualified must report the fact to ASIC under section 36.

The section 51 trade mark cancellation power is effective and orderly, but it requires a court order. ASIC will not cancel a business name administratively because of a trade mark dispute alone. The trade mark holder must obtain an order in the infringement action, then lodge it with ASIC.

A sole trader trading under "Sydney Acoustic Insulation" without registering the name with ASIC commits an offence under section 18. The trader cannot defend a claim in trade or commerce by relying on use under a personal name, because the trading name plainly differs from the trader's personal name.

A registered company "ABC Building Pty Ltd" wishes to trade as "Sydney Renos". The company applies under section 23. ASIC checks availability under section 25: the name is not identical or nearly identical to another registered business name, is not a reserved or registered company name, is not on the undesirable names list under section 27, and does not contain restricted words under section 28. ASIC registers the name under section 24. The company must include "Sydney Renos" on its written business communications under section 19 and display it prominently at its premises under section 20.

A trade mark holder sues an infringer and wins. The infringer holds a business name on the Register that uses the offending mark. As confirmed in Hugo Boss AG v Hardge [2024] FCA 1325, the court has power under section 51 to order that the registration of the business name be cancelled. The court order, lodged with ASIC, leads to mandatory cancellation under section 51(2). The infringer cannot continue to advertise under the cancelled name without committing an offence under section 18.

A registered owner of "Acme Cleaners" enters bankruptcy. Under section 38, the owner must notify ASIC of the bankruptcy. Failure to do so puts the registration at risk of cancellation under section 48. ASIC may also cancel under section 44 if the bankruptcy results in the entity becoming disqualified.