A business name is simply the name your business trades under, the name on your shopfront, your invoices and your website. If that name is not the legal name of the entity behind the business, Australian law requires it to be registered on a national register of business names. The register exists for a straightforward reason: anyone who deals with a business, whether a customer, a supplier or a creditor, can look the name up and find out exactly which entity stands behind it and how to contact that entity.
The registration system is national. The Business Names Register is administered by ASIC, and a name registered on it is valid everywhere in Australia, so you do not need to register the same name separately in each state or territory. This replaced the older system in which a business could face separate registration obligations under the law of more than one jurisdiction. If you are setting up a business, rebranding, or trading under a name that differs from your legal name, this article explains who must register, how the registration process works, which names ASIC will accept, what you must do after registering, and what registration does, and does not, give you.
Who runs the register and who must use it
Three sets of actors matter to this scheme:
- Your business: the entity that trades under the name and holds the registration.
- ASIC: the regulator that maintains the national register, assesses applications and can cancel registrations.
- Courts: the forum for trade mark disputes, where a court can order that a business name registration be cancelled.
The central rule is in s 18 of the Business Names Registration Act 2011 (Cth) (the BNR Act). It is an offence to carry on a business under a name that is not registered to you as a business name on the register. The maximum penalty is 30 penalty units, which is $10,920 at the current unit value of $364. The section then lists the names that do not need registration because they are treated as your own name:
- an individual carrying on business under their own name;
- a corporation carrying on business under its own registered company name;
- a partnership carrying on business under a name made up of all the partners' names; and
- a name that an Act of the Commonwealth or a state or territory specifies as the name of the entity, and names of government bodies.
Everything else needs to be registered. Whether you operate as a sole trader, a partnership or a company, the test is the same: if you carry on business under a name that is not your own legal name, that name must be on the register. The Act applies only where the activity genuinely amounts to carrying on a business, which it defines as an activity done in the form of a profession, trade, employment, vocation or calling, or on a regular and continuous basis, and only where the entity would be entitled to an ABN.
The practical result of these exemptions is easy to see in examples:
| Legal name | Trading name | Registration needed |
|---|---|---|
| Jane Doe (individual) | Jane Doe | No |
| Jane Doe (individual) | Jane Doe Pastries | Yes |
| Jane and John Doe (partnership) | Jane and John Doe | No |
| Jane and John Doe (partnership) | Jane and John Doe Pastries | Yes |
| Jane Doe Pty Ltd | Jane Doe Pty Ltd | No |
| Jane Doe Pty Ltd | Jane Doe Pastries | Yes |
The point to notice is that a company does not need a business name to trade under its own registered company name, but does need one for anything else, and an individual or partnership only escapes registration when the trading name is exactly the owner's own name or the names of all the partners.
How registration happens
You apply to ASIC to register a business name, most commonly through the government's Business Registration Service. Before you apply, you generally need an ABN, because the application must include your ABN or the reference number of a pending ABN application. The application must also set out details sufficient to identify your entity, the address of your principal place of business in Australia, an Australian address for service of documents, the business name itself, the period of registration you want, and whether you are disqualified from holding a business name. A person who carries on a business under a business name while disqualified commits an offence under the Act, also carrying a maximum penalty of 30 penalty units.
Once lodged, applications are dealt with in order. If two or more applications are lodged for names that are identical or nearly identical, the application lodged first takes priority, so a name can be lost to someone who simply got in earlier. ASIC registers the name by entering it on the register together with your identifying details, your ABN, your principal place of business and your address for service of documents.
A registration runs for either one year or three years. Companies can ask ASIC to align the expiry of a business name registration with the company's annual review date, so that the two renewals can be handled at the same time. The registration fee is payable when you apply. Fees under the Business Names Registration (Fees) Act 2011 (Cth) are indexed each year on 1 July in line with the Consumer Price Index, and ASIC publishes the current schedule of business name fees on its website, so the exact amount changes over time.
Which names ASIC will accept
You cannot simply register whatever name you like. A business name is available to you only if it is not identical or nearly identical to a name that is already taken, including another entity's registered business name, a name reserved or registered for another body under the Corporations Act 2001 (Cth), a name on a notified state or territory register, or the name of a government body. The Minister can make rules for working out whether names are identical or nearly identical, and those rules can treat names as nearly identical even where they differ in small ways, such as the addition of a word. A variation of a name that is already taken can therefore still be refused.
Beyond availability, ASIC will not register names that are undesirable, such as names that are offensive, and certain words and expressions are restricted, which means they can only be used if conditions are met. The objects of the Act spell out the policy: to avoid confusion by keeping identical or nearly identical names off the register, to stop undesirable names being registered, and to stop names that might mislead consumers.
If your application is refused, you are not without recourse. Certain decisions by ASIC or the Minister can be reviewed by the Administrative Review Tribunal, and your priority over the name is protected during the review period after a refusal, which is 28 days unless a longer period is determined. In practice, the cheapest way to avoid a refusal is to use ASIC's check name availability search before you lodge, and to have a second and third name in mind, because the first choice may be taken.
Your obligations once registered
Registration is not a one-off event. The Act imposes continuing obligations on a business that trades under a registered name.
The business name must be displayed prominently at every place at which you carry on business that is open to the public, and the Act makes it an offence to fail to do so, with a maximum penalty of five penalty units. Your business name must also be included in your written communications, so that the people you deal with can connect the name on the register with the business they are actually dealing with. And because the register is only useful if it is accurate, the Act obliges you to notify ASIC when details such as your address or your entity's details change, and ASIC can act if it later becomes aware of a matter that would have affected its decision to register the name in the first place.
Most importantly, registration gives you no ownership of the name. Section 17 of the BNR Act states that registering a business name does not affect anyone's rights in the name under the general law or under Commonwealth or state law, and that you do not acquire property in the name simply because it is registered to you. This is the misconception that causes the most trouble. A business name registration is an identification tool, not a brand protection tool. A registered trade mark is the mechanism that protects a name against use by others, and the two are separate systems. If a business name is used in a way that infringes a registered trade mark, a court can order that the business name registration be cancelled, and ASIC must cancel it once the court's order is lodged with it.
Renewal, changing and cancelling a registration
A business name registration has a fixed life. You renew it by paying the renewal fee for a further period of one year or three years. ASIC must remind you in writing at least 28 days before your registration period expires, but a failure to give that reminder does not stop ASIC from cancelling the registration if you do not renew. If the registration period expires and you do not renew, ASIC may cancel the registration, and the cancellation can take effect as early as three months after expiry. Note that the name continues to be registered to you after the expiry date until ASIC actually cancels it, so you cannot assume a lapsed name is instantly available to someone else.
Two other things commonly surprise business owners. First, the registered name itself cannot be amended. There is no mechanism to change the name on the register, even for a small variation. If you want to trade under a different name, you register the new name as a fresh registration, and you can then cancel the old one if you no longer use it. Secondly, ASIC can cancel a registration on its own initiative if you are not carrying on a business under the name and have not done so for the immediately preceding three months, subject to exceptional circumstances. It must give you at least 28 days' written notice before cancelling, and the section gives you the chance to show that you are still using the name or have a good reason for not doing so. ASIC must also cancel a registration when the entity holding it no longer exists.
Where business owners get caught out
The most expensive mistake is trading under an unregistered name. The fine can reach 30 penalty units, currently $10,920, and because the register is public, customers, competitors and regulators can check at any time whether your name is registered.
The renewal gap is the second trap. If your registration lapses and is cancelled, the name becomes available for anyone to register, including a competitor. Because a lapsed name only becomes available when ASIC cancels it, and cancellation can take months, it is worth renewing on time rather than assuming the name is protected in the gap.
The third trap is confusing registration with ownership. Because registration creates no property right, another business can obtain trade mark protection over a name you have only registered as a business name, and if your continued use of the name infringes that trade mark, a court can order your registration cancelled. A name you have used for years can be lost this way if you never checked the trade mark position at the start.
Finally, keep your registered details current. If ASIC cannot reach you, you may not receive the renewal reminder, and the Act makes clear that the reminder is a courtesy that does not affect ASIC's power to cancel an unrenewed registration.
When a lawyer helps
For a straightforward sole trader registering an unregistered name, the process is genuinely simple and can be completed online without a lawyer. Professional help earns its keep at the edges of the process:
- before you commit to a name, checking availability, the trade mark position and the risk that your name is too close to an established brand, including the risk of a passing off claim;
- when a name is refused or ASIC threatens cancellation, and you need to respond within the notice periods or seek review of the decision;
- when your structure changes, such as incorporating a business or changing a partnership, because the new entity usually needs to take out its own registration and the old one must be handled correctly;
- when a trade mark dispute threatens a business name, because the cost of rebranding is far higher than the cost of resolving the dispute early; and
- when a business owner dies and the business is to continue, because there are specific provisions for the estate and successors holding the registration.
A lawyer's role is to look at the name the way a court or a trade mark owner would, and to tell you before you spend money on branding whether the name is worth protecting and how.
Why registration is not ownership
The single most valuable thing to understand about the business names register is the gap between what it does and what people assume it does. Registration tells the world who is behind a name. It does not make the name yours. The moment that gap matters is when you start building real value in a name, because that is when a competitor with trade mark rights, or a name that is nearly identical to someone else's, can force you off the register and into a rebrand. The check that protects you, a trade mark search and availability review before you commit to the name, is cheap. The failure it prevents, losing the name your business is built around, is not. If you are not sure whether the name you trade under is worth protecting, that is exactly the question a short conversation with a business lawyer can answer.