Your perfect business name may be unavailable, even if ASIC’s search tool suggests otherwise. We explain when business name registration is required in Australia, how business names differ from brands, and the hidden availability rules to check before investing time and money in your chosen name.
Found the perfect name for your business? Before you invest in signage, a website or a brand launch, it pays to check whether you need to register it as a business name and whether it’s available. A product or brand name won’t always require business name registration, but how you use it matters. And the availability rules can hold surprises: words like “bakery” and “bakehouse” are treated as identical, even if ASIC’s search tool gives you a green light. A business name registration won’t give you ownership of the name or replace trade mark protection, either. Checking the naming rules and getting advice early can help avoid an unwelcome refusal or a costly rebrand.
What is a business name and when is registration required?
- A business name is the trading name under which an entity carries on business, it acts as a public-facing identifier and does not create a separate legal entity.
- A company name is a separate legal identity in its own right.
The key practical distinction is that if a company wishes to operate under a name different from its registered company name, it must register a business name. For example, if “Smith Consulting Pty Ltd” wishes to operate publicly as “Smith Advisory”, it must register “Smith Advisory” as a business name on the ASIC Business Names Register (the Register).
The registration obligation is not merely administrative; it carries legal consequences. Under section 18 of the Business Names Registration Act 2011 (Cth) (the Act), it is a strict liability offence, carrying a penalty of 30 penalty units, for an entity to “carry on a business” in Australia under a name that is not registered.
There are exceptions. Business name registration is not required where:
- an individual carries on business under their own name
- where a partnership operates under all of the partners’ names
- where a registered Australian company operates under its exact registered company name.[1]
These are examples only. Section 18(2) of the Act sets out several further exceptions, including for names on a notified State or Territory register, government bodies, and certain successors in business. Outside the exceptions in the Act, registration is required.
Business names versus brand names
The distinction between a business name and a brand or product name is often missed, and it is worth pausing on. The Act defines a “business name” as a name used, or to be used, in relation to one or more businesses. The touchstone is whether the name is being used to identify who is carrying on the business, being the entity a customer is dealing with, rather than a product, service line, or marketing label used within an existing, properly named business.
For example, a company might sell several product ranges under distinct brand names, or use a shop-front brand for marketing, while all invoices, contracts, and formal communications are issued under its registered company name or a registered business name. In that scenario, the brand names are not, of themselves, business names requiring separate registration, because they are not being used to identify the entity carrying on the business. However, if a brand name is used prominently enough that customers could reasonably believe they are dealing with an entity called “[Brand Name]”, rather than the registered company or business name, it risks crossing into business name territory and triggering the registration obligation under section 18 of the Act.
Registering a business name confers no proprietary rights in that name. Registration under the Act exists purely to identify who is behind a business; it is not a substitute for trade mark protection, which is a separate registration regime entirely.
The availability tests
Before deciding on a business name, it is essential to conduct an availability check. This is a free search tool available on ASIC’s online platform (ASIC Connect) that indicates whether a proposed business or company name is likely to be available for registration. There are two distinct registration regimes in Australia, each with its own availability test:
- Company names are governed by section 147 of the Corporations Act 2001 (Cth) (Corps Act). ASIC will not register a company name unless it is available, meaning it is not identical to a name already reserved or registered under the Corps Act or on the Business Names Register, and is not otherwise unacceptable under the regulations.
- Business names are governed by section 25 of the Act. A proposed business name will not be accepted if it is identical, or nearly identical, to a name that is already registered as a business name, reserved or registered as a company name under the Corps Act, held on a notified State or Territory register, or held by a government body or authority. A name will also be refused if it is of a kind that is undesirable (for example, because it is offensive or falsely suggests a government connection), unless the Minister determines otherwise. The comparison is performed in accordance with specific rules set out in the Business Names Registration (Availability of Names) Determination 2015 (the Names Determination).
When testing whether a name is identical or nearly identical, ASIC will ignore:
- articles such as “the”, “a” and “an”
- whether a word is singular or plural
- differences in font, case, spaces, and punctuation
- a host name such as “www” or a domain extension such as “net”, “org” or “com”
- legal structure and entity-type words such as “Association”, “Co-operative”, “Incorporated”, “Limited”, “Ltd”, “No Liability”, “NL”, “Proprietary” and “Pty”.
A name will fail the availability test if it is identical, nearly identical, or too similar to an existing name. However, similarity in wording is not the only barrier to registration, there is a further hidden barrier under the regulatory framework.
Legislatively identical terms: The hidden barrier
The most significant, and least understood aspect of the availability test is the schedule of words and expressions treated as identical under the Names Determination.
Schedule 1 of the Names Determination contains a long list of words and expressions that are considered the same as other words or expressions. Some of these words that are considered to be identical include:
- airlines, air services, aviation, aviation services
- bakehouse, bakery, bakers
- build, builders, buildings, building services, construct, constructions, construction services, fabrications, developments
- child care, child care centre, children’s centre, childrens centre, day care, family day care, long day care centre, day care centre
- credit, finance, lending, loan centre, loan office, loans, money, financial, finance solutions
- clinic, health care, medical centre, medical practice, medical services, medicine, medicine centre, practice, surgery, health, medical, medical clinic, medicine clinic.
Therefore, if “bakehouse”, “bakery” and “bakers” are all considered identical this means that “Fresh Bread Bakehouse,” “Fresh Bread Bakery” and “Fresh Bread Bakers” would be considered identical or nearly identical.
The consequences are significant. If an existing name contains one term from Schedule 1 of the Names Determination, a proposed name using a legislative equivalent will be refused. The registration will be refused regardless of whether the two names are commercially distinct or whether the applicant has already registered a company name containing the same words. For example, if a business has an existing company name for The Fresh Bread Bakers Pty Ltd but there is an existing business name registration for “FRESH BREAD BAKEHOUSE”, it will not be able to register “The Fresh Bread Bakers” as a business name because the terms “bakers” and “bakehouse” are considered to be identical per Schedule 1 of the Names Determination.
In our experience, ASIC’s own business name availability tool won’t always capture existing business name registrations that are caught by Schedule 1 of the Names Determination, meaning a name may appear available in the tool, but ultimately be rejected by ASIC because an existing name falls within the terms in Schedule 1.
Under section 24 of the Act, ASIC’s decision to refuse is mandatory once the availability test is failed. There is no administrative discretion.
Can you challenge ASIC’s decision to refuse a business name?
Under section 56 of the Act, a refusal to register a business name is a reviewable decision, and an applicant may seek internal review with ASIC, and then apply to the Administrative Review Tribunal (ART).[2] However, the ART’s jurisdiction is limited: it can review whether ASIC correctly applied the law, but it cannot override the legislative instrument prescribing the identical terms. Where the refusal is mandated by the Names Determination itself, any challenge to the underlying rule would require Federal Court proceedings.
Before you commit to a business name:
- Check whether you need to register it. Think about how customers will encounter the name: does it identify the business they are dealing with, or simply a product or service?
- Search before you spend. Check name availability before investing in signage, a website or a brand launch.
- Look beyond the ASIC search result. Check Schedule 1 of the Names Determination for words treated as identical. Substituting “bakery” for “bakehouse”, for example, won’t avoid a conflict.
- Consider trade mark protection separately. Business name registration does not give you ownership of the name or replace trade mark protection.
- Get advice before committing or challenging a refusal. Early advice can help identify naming problems and alternatives; if ASIC refuses your application, understand the basis for that decision before deciding whether to seek review.
Choosing a business name is a creative decision, but checking whether you can use, register and protect it deserves just as much attention. A few checks and timely advice before you launch can help you avoid an unwelcome refusal or a costly rebrand.
For more information, please contact Sarah Gilkes or Alana Long.
[1] Business Names Registration Act 2011 (Cth), s 18 (2).
[2] Ibid, s 57 and s 58.
