When you are setting up a new charity or not-for-profit (whether incorporated or unincorporated), you will of course need to come up with a name. Something that resonates with you and the team you may have working with and supporting you. Something that describes what your organisation is about. Something you can live with, at least for the mid-term.
But there are also a number of legal and other matters you need to consider.
Oh, and you may of course be thinking of changing a name you are already using, in which case, the same requirements described in this article will apply.
There are some legal requirements about the use of names, many of which depend on the type of entity you choose to incorporate. For example:
In addition, some names are specifically protected and cannot be used without specific consent by the Government. For example 'Bank', 'Anzac', 'Trust', the names of some international organisations and the names of components of the armed forces.
Names that are offensive, use bad language, are likely to deceive the public or could be confused with a government department are also likely to be refused.
And let's not forget the obvious. You cannot use a name if someone else is already using it!
Another key legal consideration is whether your preferred name does, or could, interfere with or impinge on another's intellectual property (such as a trademark).
You can of course do your own homework using resources like Internet search engines, the white pages, the yellow pages, Australia's trademark register administered by IP Australia and the Australian Securities and Investments Commission's online registers.
However, if your search reveals a potential similarity or conflict with another name or trademark, or if you want that extra level of certainty, we recommend that you engage a qualified IP professional to conduct a search and prepare you an advice about the use of the name – often referred to as a 'clearance search'.
If you would like us to help you with conducting a 'clearance search' please get in touch and one of our specialist IP lawyers will get back to you ASAP!
What about where I want to protect my new business name?
Now, if you go ahead and do your research, chances are you've come up with a fabulous business name that is appropriate for your organisation and that you identify strongly with. But be careful, if you go ahead and register this name it doesn't stop someone else from registering and using a similar name. If you want to make sure you're the only one who is legally permitted to use the name you've come up with, you may be able to register it as a trademark. If you would like help with registering a trademark, or even if you are just thinking about it, our specialist IP lawyers can help you with this too. Just get in touch here and we'll get back to you ASAP!
When coming up with a name, we recommend that you also think about:
Through ASIC's online service, ASIC Connect, found by visiting ASIC's website and selecting the "business names" link, it is possible to:
The fee for one year's registration for each business name is $36, or $85 for three years.
Note: If you are operating under a particular business name as an unincorporated group and you choose to incorporate later down the track using the same name, you will need to provide evidence that you are the owner of that name before you will be allowed to use the name.
Have you had any interesting experiences or difficulties when choosing a name? If so, please do let us know in the comments below.
What is the difference between a trading name and a business name?
The chances are, if you've been looking at registering a name for your not-for-profit, you might have seen the terms 'trading name' and 'business name' being thrown around. We'll explain the difference here.
Before ASIC introduced the Australian Business Register (ABR) on 28 May 2012, the names that businesses were using are referred to and displayed on the ABR as the 'trading name'. These trading names are unregistered and have not been updated since the national business names register also commenced on 28 May 2012.
A 'business name' on the other hand is the name which you or your organisation has registered with ASIC, under which you operate a business.
If you would like to continue using a trading name, you need to register it as a business name (and thankfully, you have all the information above to help you do so). Luckily for you, if your trade falls within one of these exemptions, you don't need to register your name:
Fun fact – one-third of all trading names have not been registered as business names!
Other important things you should know are:
What's this business with ASIC stopping trading names (pun entirely intended)?
Although trading names are currently still displayed on the ABR, from 1 November 2023 they will be removed and only registered business names will be displayed.
When ASIC took over the registration and administration of business names, a transition period was implemented which spans from 28 May 2012 to 31 October 2023.
This is intended to allow businesses who were affected by the removal of trading names enough time to let their customers, suppliers and other stakeholders know of any changes to the name they use to conduct their business (and register their name as a business name if they want to keep using it!).
You can find out more about Darren Fittler here.
