The creation of a national register of business names has been proposed by the Business Names Registration Bill 2011. The register is to be administered by the Australian Securities and Investments Commission (ASIC) and is expected to be launched in July 2012.
The purpose of the national register is to enable those who deal or propose to deal with that business to determine the identity and contact details behind the business name. The registry will allow cheaper and easier registration covering all of Australia and also introduces a way to address issues of trade mark owners.
Trade marks and business names are currently kept on separate registers administered by the Registrar of Trade Marks and ASIC respectively. Some common confusions relating to business name registration include:
Due to the lack of cross-referencing between registers, it has been possible to register a business name or incorporate a company with a name that is deceptively similar to a registered trade mark.
To combat this problem, IP Australia has issued warnings such as, “Caution: When you register your business name, be careful that it does not infringe on someone else’s trade mark. It is wise to search the trade mark databases first,” and has encouraged more public education about the trade mark register. However, a search of the IP Australia trade mark database can be complex and difficult for a member of the public to carry out.
TM Check is proposed to be launched along with the national register. TM Check is a search tool, developed through the Department of Innovation, Industry, Science and Research, and IP Australia, that looks at the business name sought and the goods or services describing the nature of the business.
When filling out an application for registration of a business name, the applicant will be required to tick a box in acknowledgement of two questions:
There have even been recommendations to make the TM Check a compulsory step in the business name registration process. This would work to attribute notice of a registered trade mark to the business name of the applicant and also to make an innocent applicant aware that the name may breach a trade mark owner’s rights. This process could also provide evidence where notice of the registered trade mark is relevant. This is relevant for claims under s43 Trade Marks Act 1995 and where the court is considering the award of additional damages.