National Business Names Register Briefing - 10 Top Tips for Business Owners

There's now less than a week to' go before ASIC launches the new' national business names system,' supported by ASIC's online service' portal, ASIC Connect, and its new' search features.' Here are our ten top tips for business owners:

1. Mind the gap

Fair Trading NSW has said it will be closing its registers today so they can finalise current applications and send' a clean data set to ASIC on 25 May, so that the data can' be migrated over the weekend to enable launch of the' new register on Monday 28 May. If your business name' renewal date falls in this period you should by now have' received a letter from Fair Trading NSW to let you know' that you should wait to receive a further letter from ASIC' before taking any steps to renew your registration. In the' meantime, NSW Fair Trading will not accept or process' new business name registrations, renewal or restoration applications after today.

2. Check that your data has been migrated successfully

While ASIC is advising that there is nothing existing business names owners need to do, given there have been' some teething problems with the new Personal Property' Securities Register that commenced on 30 January this' year, it would be advisable to check after 28 May that your business names have been migrated successfully.

3. ABN is king

To register new names from 28 May on the new National Business Names Register the applicant will need to quote an' ABN or at least provide the ABN application number if they are waiting for an ABN to be issued to them. The national' register will support registration by trusts and partnerships' and other taxpayer (but non-legal) entities, using the ABN' as the key that holds it all together. In November ASIC' is expecting to launch a joint service with the Australia' Business Register (ABR) whereby new businesses will' be able to file a joint online application for an ABN and' National Business Names registration.

4. Use the new search service through ASIC Connect and be' prepared for "computer says' no"

The free Check Name Availability search, which will tell you if a name is immediately available, is one type of search' that will be offered. There are also a range of search'  attracting a fee that can be paid for and the search' obtained online, in addition to searches of registers like' those of banned and disqualified persons, and Australian' Financial licensees, that are fee free. Bear in' mind that the rules for availability of business names and' company names are different, with there being a range' of additional rules as to when business names will be' considered identical to other business names than applies in' relation to company names. It is expected that registration' under the new rules will be more difficult then is the case' currently, as the flexibility of different applicants being able' to register in different states for geographically separate businesses will disappear, and the sophistication of the' trade marks register, which allows for identical marks to be registered in different , will not exist in the business' names register.

5. To let lapse or not to let lapse

If you have a number of identical business names from different s that are migrated, don't just' automatically let all the registrations that expire first lapse,' (although you can, of course, decide to do this). Yes, you' will have to pay separate renewal fees to keep them all' going, but at $30 for one year and $70 for three years they' are considerably less than the current state fees, and you' may have the opportunity or desire to sell or transfer those' names in the future in particular geographical s.' In the meantime, you can keep all the multiple registrations' going indefinitely, something which will not be possible' with registrations under the new regime. ASIC says you' will be able to align all your registration periods if you want' to cut down on administration.

6. Computer says maybe?

The new system will respond to your new application with a red, green or amber light'€¦..the latter will allow' you to discuss the application with a real person before' a decision is made, as it will have been rejected because' it failed on one of 14 tests for availability. There will also' be an amber (transfer) result which will indicate that you' will need to provide the consent to transfer number which' the transferor should have received from ASIC before your' application can be processed. In buy/sell transactions the' vendor should have provided this number to the purchaser' on settlement. You can also apply for review of a decision' to reject a name.

7. Get (connected) with the program

The first step to being able to transact with the system will be to sign up to ASIC Connect and obtain an ASIC key.' Keys are issued per business name and allow you to link' the name to your ASIC Connect account for the purposes' of registration, administration and renewal. Keys will be' issued with a registration and with a renewal notice, or' you can request an ASIC key be issued to you at any time through the website www.asic.gov.au/question. Agents' acting for several businesses in managing their business' names can, after arranging client authorisation, request' a bulk list of ASIC keys for each of their clients which' they can then use to link those business names to their' individual ASIC Connect accounts, and transact for those' clients. More than one agent can transact for one business.

8. Where names collide

In short, if there is a tussle over a name, the winner is likely to be the one with the registered trade mark. Remember' that the business names registration will not give you' rights in the name; you need a trade mark registration for that. Seriously consider applying for trade mark' registration if you do not have it already. We've said it' before and we'll say it again'€¦business names registration' is about compliance, trade mark registration is about name' protection.

9. Don't panic about renewals (just yet)

ASIC has said they will be phasing in renewals post 28 May so as not to overload the system, so will be staggering' their reminder letters, but as mentioned before you should' check to see whether all your details have been successfully' migrated and that none of your personal information (date' and place of birth and residential address) appears on the' public registers.

10. Look to the future

The new online that ASIC is promoting will be further enhanced in coming years '€“ with joint ABR/ASIC' registration for new businesses mentioned above to be' launched in November this year and features such as' online company registration expected to be launched in' 2012/2013. In the meantime, ASIC has said they will' be relying on feedback from customers and the results' of appeals for review in refining the systems around the' availability and registration of business names.