ASIC fees to rise — Need to register a company? Save a little this financial year

Christopher Balmford, MD

On 1 July 2011, the ASIC fee:

• for registering a Proprietary Limited (Pty Ltd) company will increase from $412 to $426. The Cleardocs fee of $137.50 (inc. GST) will stay the same.
• for reserving a name (or extending a name reservation) for a Proprietary Limited (Pty Ltd) company will increase from $41 to $42. The Cleardocs fee of $22 (inc. GST) will stay the same.

According to ASIC, the fee rises are to reflect an increase in the Consumer Pricing Index (CPI).
Also, there will be a one-off increase to the company annual review fee, to cover the increased costs of the national scheme.

Various other ASIC fees are increasing. You can read more information about the new fees here on ASIC’s website.

Remember you can use Cleardocs to create legal documents, and to register companies with ASIC 24 hours a day, even on weekends.

Registering companies this financial year
Also, remember:

• that company registrations cannot be back-dated. So if you need a new company to exist in this financial year, then you must register it before the end of this financial year; and
• that a company’s Certificate of Incorporation is dated the day that ASIC approves the registration – not the date the application is lodged (if those dates are different).

So if you find yourself with a last minute company to register, then make sure you keep an eye on your order through Cleardocs to make sure the company gets registered. For example, if you lodge a company registration application before 30 June 2011 but ASIC rejects the application, then you will need to make sure you correct and resubmit your application — and that it is successful — on or before 30 June 2011.

Extended helpline hours
We will extend our helpline hours for the last few days of the financial year. We'll answer the helpline:

• on the weekend of Saturday  25 and Sunday 26 June from 9am to 5pm; and
• each day from Monday 27 June until Thursday 30 June until at least 8pm.

Registering a Business Name, Registering a Company Name, Reserving a Company name, and registering a Trade Mark: an explanation

Christopher Balmford, MD

At Cleardocs, we sometimes get calls from people who are confused about company names and business names. They wonder:

• Aren’t they the same?
• What are the differences etc.?

This blog aims to help.

Why do people register names?

People register names, generally, for these 3 purposes:

• to set up a business, a trustee company, or another organisation — by registering a company, which involves choosing a name for the company;
• so as to have a trading name to trade under — for example, as a person, a partnership, or an organisation. They do this by registering a business name; and
• to protect intellectual property so other people can’t use the name. Usually, the best way to do this is by registering a trade mark. But registering a business name or a company name can help, see below.

Where do the various name registrations apply?

The names registrations apply as follows:

• business names are registered, and regulated, on a state and territory specific basis through the relevant government department in each state or territory. You can see a list of each state or territory’s organisation and their website here. You can register the business name online through those websites;
• company’s (and therefore their names) are registered Australia-wide through ASIC, that is the “Australian Securities & Investments Commission”; and
• trade marks are registered Australia-wide through IP Australia.

What names can you register through Cleardocs?

You can use Cleardocs:

• to register a company with the name of your choice, see here;
• to reserve a company name with ASIC, see here; and
• to register a trade mark to protect intellectual property in the name, see here.

How does a registered or reserved company name or registered business name limit other uses of the same name?

Business name registered If someone registers a name as a business name in any state, or territory, say South Australia, then:

• nobody else can get an Australian company with that name in Australia; but
• someone can register the same name as a business name in any other state or territory (apart from South Australia).

So the business name registration in one state or territory:

• blocks the business name in that state or territory (but not in any other state or territory); and
• blocks the company name registration throughout Australia (though the person who owns the business name can arrange to register a company with the same name — by the way, the Cleardocs interface specifically allows for this).

Company name registered If someone registers a company, then nobody else can register the same name as a business name in any other state or territory. That’s it — the company name registration blocks all business name registrations.

Company name reserved If someone reserves a company name, then nobody else can register the same name as a company name while the name is reserved. You can read about this on the ASIC site here. The information on ASIC's site doesn't say whether reserving a name as a company name prevents anyone registering the name as a business name. However, the customer service person at ASIC I spoke with said that it does. You can check that:

• by calling ASIC on 1300 300 630, then pressing 1 and 1 again and speaking to the person there; or
• by calling the government body that registers business names in your state or territory. Their websites are here.

How does registering a trade mark fit in?

If you register a trade mark, then that prevents anyone registering the same trade mark for the same classes of goods and services for which you registered your trade mark.

However, having a trade mark doesn’t stop anyone registering a business name or company name using your trade mark. But your trade mark registration does give you rights that you can protect (or try to protect) by suing a person who uses your trade mark in relation to the classes of goods and services for which you registered your trade mark.

As the explanation on IP Australia’s website puts it, a “. . . trade mark gives the registered owner exclusive use of the trade mark throughout Australia” for the relevant classes of goods and services. So you can use that exclusive right to stop someone from using your trade mark in their company name or business name. There’s useful information about trade marks on the IP Australia website here — IP Australia is the government body that registers trade marks.

You can read more about registering a trade mark through Cleardocs here. Our system help you to choose the classes for which you might consider registering your trade mark.

More information

You can use Cleardocs:

• to register a company, see here;
• to reserve a company name with ASIC, see here; and
• to register a trade mark to protect intellectual property in the name, see here.

You can call Cleardocs on 1300 307 343.

A rose by any other name… choosing a name for your company, trust, or SMSF

Lisa Galbraith, CEO

At various points in our life we get to name things – our children, our pets, and some of us decide whether to change our name when we marry. We turn to book checking, discussions with interested parties, and checking of meanings.

Then comes the moment of selecting the name for your new company or your family trust or your SMSF — and many of us are stumped for ideas. All the good ideas seem to be taken!

To save you a bit of time before you start brainstorming names, here's a simple guide to what's possible.

Choosing a company name

ASIC's imprimatur

When it comes to selecting your company name, ASIC keeps a firm hand on acceptable names. No use of "bank", "trust", "ANZAC" "incorporated", "building society", "royal". Under the Act, the use of "Sir Donald Bradman" is specifically called out as off-limits. Offensive names and names that suggest illegal activity are also a no no. Schedule 6 of the Corporation Regulations provides a handy list of the unacceptable names.

Using an existing business names

An existing registered business name – other than your own – is also off limits. Even if your company will be based in Melbourne and the registered business name is in Queensland, ASIC won't let you have the name. We get lots of calls on our helpline about this. ASIC rejects these names because a company's name is in the public domain so ASIC doesn't want it to be misleading or for it to suggest a link that does not exist. So if there is a registered business name, then your company name could create confusion and your request will be rejected.

You can, of course, apply for an exception – you do that by sending a form to the appropriate Federal Minister and paying the $1,000 fee. For example if you wish to use "ANZAC", then you will need to apply in writing to the Federal Minister for Veterans Affairs. (I am not sure what the turn-around time on these types of requests is J. If you've ever done one, please comment below.)

Names that are similar to existing names

If your company name is similar to an existing company or business name, then ASIC may reject it as well. For example, using a plural of an existing name is considered too similar, so is a name that sounds the same when spoken even though it is written differently.

Use the ASIC identical name check link

So before you lodge your company application, use the ASIC identical name check link. Here is the link so you can check now.

Choosing a name for your trust or SMSF

On the other hand, when it comes to naming your SMSF or family trust, you can really let your creative juices flow. (Although if your trust will be trading in the public domain, then you probably want to keep a valve on those juices). You should also keep in mind that someone in your State Revenue Office will be stamping your document or reading the name on your cheques.

It is useful to use a name that helps you remember what the document is for; for example including "family trust" or "super fund" makes it easy for you to locate the correct legal documents.

The main thing is that trust and SMSF names do not need to be registered with ASIC (or anyone else). So it's fine if more than one trust ends up with the same name.

Some of my personal favourites that have come across my desk include: "The Absolute Trust", "Mine Not Yours Superannuation Fund", "Where2Next Super Fund".

But if you are really stuck, you can always use your own surname – which is a pretty special name in its own right.