Establishing a franchise is the point in a business's life where the name stops being a label and becomes the asset the whole network trades under. Every franchisee will market under it, every customer will recognise it, and much of the value of the business will come to sit in the brand itself. Before you sign your first franchisee, that name needs to exist on the national register, which in Australia is the Business Names Register maintained by the Australian Securities and Investments Commission (ASIC). Under s 18 of the Business Names Registration Act 2011 (Cth) (the Act), carrying on a business under an unregistered business name is an offence, so this is not a step you can defer.
When the process is complete you will hold a registration recorded against your entity on the Business Names Register, valid for one or three years, and ASIC will have emailed you a record of registration. What you will not have, despite what many franchisors assume, is any proprietary right in the name itself. Section 17 of the Act is explicit that registering a business name does not give you property in the name, and it does not stop another business from using it. Protecting the name as a brand asset is a separate process with IP Australia, and it is covered in the steps below because for a franchise it is the step that actually creates value.
What you need before you start
Gather these before you open ASIC Connect, because the application form asks for all of them at once:
- An ABN, or an ABN application reference number: ASIC cannot register a business name to you without one. Section 23(2) of the Act requires the application to include your ABN or, if the ABN application is still pending, a statement to that effect and the reference number.
- A decision on who will hold the registration: The holder is the entity that owns the business, and it is the entity whose name appears on the public register. For a franchise network this is almost always a company, because the same entity will sign the franchise agreements and own the intellectual property.
- A name that has passed the availability check: ASIC will not register a name that is identical or nearly identical to a name already on the register, so run the search before you pay the fee.
- An Australian address for the principal place of business and an address for service of documents: Both are mandatory application fields under s 23(2) of the Act.
- The registration fee: The fee is modest and is indexed on 1 July each year under the Business Names Registration (Fees) Act 2011 (Cth); it currently sits at around $45 for a one-year registration and a little over $100 for three years, and is not subject to GST.
- Written authorisation, if someone else lodges for you: ASIC allows an authorised lodger, such as an accountant or lawyer, to register the name on your behalf, but you will need to authorise them in writing and your contact details should still be used so ASIC can reach you.
The two items that trip people up are the ABN and the clearance search. The ABN is a hard prerequisite, and the clearance search is what stops you paying for a name ASIC will refuse or a name that exposes your franchisees to a trade mark dispute.
The registration process, step by step
Decide who will hold the name
The holder of the business name should be decided before anything else, because the name is registered to that entity and that entity must be the one that owns the brand and signs the franchise agreements. For franchisors this is normally a company, which gives you a separate legal entity, limited liability, and a clean structure for multiple franchise locations. If you are incorporating, do that first through ASIC and note the company's ACN. Sole traders, partnerships and trusts can hold business names, but they are an unusual fit for a franchise network, and the registration form differs slightly for each holder type.
Get an ABN
If the holding entity does not already have an ABN, apply for one through the Australian Taxation Office before you touch the business name application. The ABN application is free, but it can take time to process, so start it early. If your ABN application is still pending when you want to register the name, you can proceed using the ABN reference number you were given when you applied, and ASIC will match the records once the ABN issues.
Run the availability checks
There are three registers to check, not one, and for a franchise the order matters:
- The ASIC Business Names Register: Use the business name availability search in ASIC Connect. If your proposed name is identical or nearly identical to a name already registered, your application will be refused.
- The trade marks register: A name can be clear on the business names register yet conflict with a trade mark held by someone else. IP Australia's Australian Trade Mark Search lets you check this free of charge, and for a name you intend to roll out across a franchise network this check matters more than the ASIC one, because a trade mark dispute would affect every location.
- The domain name register: Check whether the matching .com.au is available through an accredited registrar. Under the licensing rules of auDA, the administrator of .au domain names, you need an Australian presence, which your ABN or a registered trade mark provides, and the domain name must be closely and substantially connected to your entity or business name.
Do the trade mark search before you commit to the name, not after. If you discover a conflict after registration, you have already spent the fee and, more importantly, you have chosen a name you may have to change across the entire network.
Set up your ASIC Connect account
Registration is lodged online through ASIC Connect, ASIC's portal for business registrations. Create an account if you do not have one, or arrange for an authorised lodger to act for you. The account is also where you will manage renewals and update your details, so keep the login details with whoever runs the franchise's compliance, not just the person who happened to lodge the form.
The application includes an eligibility declaration: the holder must not be disqualified from managing corporations and must not have been convicted of certain criminal offences. Confirm this before you start, because it is part of the declaration you will be asked to tick.
Lodge the application
Log in to ASIC Connect, select the Licences and Registrations tab, and choose business name registration. The form asks for:
- the ABN or ABN reference number, entered without spaces;
- the business name exactly as you want it to appear on the register. ASIC warns that business names are case sensitive, so decide on the capitalisation once and use it consistently across your branding, domain and trade mark application;
- the registration period, either one year or three years;
- the holder's details, including directors or owners;
- the principal place of business address and an address for service of documents; and
- confirmation of the eligibility declaration.
Section 23 of the Act sets out what the application must contain, and the application must be lodged in the prescribed form, which means the ASIC Connect online form (or the paper alternative).
Pay the fee within 10 business days
The application is not complete until the fee is paid. Under s 30 of the Act, if you lodge the application but do not pay within 10 business days, the application is taken to have been refused and you will need to reapply and pay again. The fee is set under the Business Names Registration (Fees) Act 2011 and is indexed on 1 July each year, so check the current amount on ASIC's fee schedule rather than relying on what you paid last time.
Receive your record of registration
Once the fee is paid, ASIC registers the name by entering your details in the Business Names Register under s 33 of the Act. Registration is usually completed within 48 hours of payment, and ASIC emails a record of registration to the contact details on the application. Check your spam folder, because the email comes from an ASIC no-reply address. There is no certificate in the post; that email record is your proof of registration, so file it with the franchise's corporate records.
Apply for a trade mark separately
This is the step that turns a registered name into a protected brand. The business name registration only gives you the right to trade under the name; as noted, s 17 of the Act confirms it gives you no property in the name and no right to stop others using it. A trade mark registered under the Trade Marks Act 1995 (Cth) is what protects the brand itself, and in a franchise context it is the asset franchisees are paying to use.
The application is lodged online with IP Australia. A standard application costs $250 per class of goods and services if you use IP Australia's picklist, with the fee payable per class and higher fees applying if you draft the specification yourself. Expect examination to take around three to four months from filing. If the mark is accepted and not opposed, registration gives you 10 years of protection from the filing date, renewable in further 10-year periods. For a franchise, register the mark in the classes that cover your actual goods and services, and make sure the franchise agreement licences the mark to franchisees, because the Franchising Code requires you to disclose details of the trade marks franchisees will be entitled to use.
Register the domain name
Finally, secure the online identity. .au domains are licensed through accredited registrars under auDA's rules, and for a .com.au you need an Australian presence, which your ABN or a registered trade mark satisfies, plus a domain name closely and substantially connected to your entity or business name. Register the domain before you launch and consider taking the matching .au and .com.au so a competitor cannot pick them up, then point the domain at the franchise's website.
Where people get held up
Most delays and refusals trace back to one of four avoidable mistakes:
- Applying without an ABN: ASIC will not process the application, and if you lodge in a hurry you waste the 10-business-day payment window. Sort the ABN first, or use the pending reference number.
- Skipping the trade mark search: The name clears ASIC but conflicts with an existing trade mark, leaving every franchisee exposed to infringement claims. The search is free and takes minutes.
- Form errors and missed deadlines: Business names are case sensitive on the register, and a typo means a fresh application and another fee, while an unpaid application is automatically refused under s 30 after 10 business days. Copy the name from your own branding documents and set the payment reminder when you lodge, not after.
- Letting the registration lapse: Registration is not indefinite. ASIC must remind you at least 28 days before expiry under s 49 of the Act, and if you do not renew, ASIC can cancel the registration, freeing the name for someone else. Renewal is lodged under s 55 of the Act for a further one or three years. If you stop using the name, cancellation also removes your protection, so renew only while the name is genuinely in use.
Where a lawyer actually helps
The ASIC form itself is straightforward, and most franchisors will not need a lawyer to complete it. The value of legal assistance in this process sits upstream and downstream of the form:
- Trade mark clearance: A lawyer runs a clearance search across the trade marks register and common law uses, and advises whether the name is registrable, enforceable and worth the cost of the application before you commit to it.
- Drafting the trade mark application: The classes of goods and services and the specification of the mark determine the scope of protection, and getting them wrong is expensive to fix later. A lawyer will draft the specification so the mark covers the franchise's actual offerings and likely expansions.
- The franchise documents: If you are franchising, the Franchising Code, which is Schedule 1 of the Competition and Consumer (Industry Codes — Franchising) Regulation 2014 (Cth), requires a disclosure document in the form set out in Annexure 1, including item 8 on intellectual property: a description of the trade marks and other intellectual property, whether they are registered in Australia with registration numbers and dates, who owns them, and the franchisee's rights to use them. A lawyer drafts this document and the licence clauses in the franchise agreement that give franchisees the right to use the brand.
- Lodging and managing the registration: A lawyer can act as an authorised lodger, fix a rejected application, and manage renewals so a lapse does not cost the network its name. Since the introduction of the Franchise Disclosure Register under Part 5A of the Franchising Code, franchisors must also provide information about their franchise system for inclusion in that register, which is another reason to keep the corporate and brand details under professional review.
The clearance work before you lodge
If there is one step that determines whether this process succeeds, it is the clearance work you do before you lodge: checking the name against the business names register, the trade marks register and the domain name register. The registration itself is quick and cheap, and ASIC processes it in days. The trade mark examination is the step that takes months, and that timeline is what drives everything else, because you will want the mark secured before you recruit franchisees who are paying for the right to use it. A name that clears ASIC but collides with an existing trade mark is a liability that grows with every new location, not a brand. Do the searches, fix the name, then lodge.
The process, in short: decide the holding entity, secure the ABN, clear the name across all three registers, lodge through ASIC Connect, pay within 10 business days, and renew before expiry. Alongside that, file the trade mark application with IP Australia and register the domain name, and if you are franchising, make sure the disclosure document discloses the intellectual property franchisees will rely on. Handled that way, the name on the register becomes the brand the network is built on.