I, BERNIE RIPOLL, Parliamentary Secretary to the Treasurer, make the following determination under sections 26 and 27 and subsection 28 (1) of the Business Names Registration Act 2011.

Dated 20 March 2012

BERNIE RIPOLL

Contents

Part 1                          Preliminary

                        1      Name of determination                                                                        3

                        2      Commencement                                                                                  3

                        3      Definitions                                                                                          3

                        4      Determining if business name is available to an entity                           3

Part 2                          Rules for determining whether business names are identical or nearly identical to other names

Division 1                    Rules for determining whether business names are identical or nearly identical to names other than company names

                        5      Matters to be disregarded                                                                   4

                        6      Matters to be considered                                                                    4

Division 2                    Rules for determining whether business names are identical or nearly identical to company names

                        7      Matters to be disregarded when comparing business names with company names    5

Part 3                          Kinds of name that are undesirable

                        8      Characteristics to be considered                                                          6

Part 4                          Restricted words and expressions

                        9      Restricted words and expressions—Part 1 of Schedule 2                     7

                       10      Restricted words and expressions—Parts 2 and 3 of Schedule 2          7

Schedule 1                  Words and expressions taken to be the same                                    9

Schedule 2                  Restricted words and expressions                                                   14

Part 1                             Restricted words and expressions                                                     14

Part 2                             Restricted words and expressions unless Ministerial consent given     15

Part 3                             Restricted words and expressions unless other consent given             15

Part 1                 Preliminary

1              Name of determination

                This determination is the Business Names Registration (Availability of Names) Determination 2012.

2              Commencement

                This determination commences on the commencement of Part 2 of the Business Names Registration Act 2011.

3              Definitions

                In this determination, unless the contrary intention appears:

Act means the Business Names Registration Act 2011.

APRA means the Australian Prudential Regulation Authority.

character means a letter, number or other written symbol.

company name means a name that is reserved or registered under the Corporations Act 2001 for another body.

Note   Other words used in this determination have the meaning given by section 3 of the Act. For example:

·       ASIC

·       available

·       business name

·       entity.

4              Determining if business name is available to an entity

         (1)   For section 26 of the Act, the rules for determining whether a business name is identical or nearly identical to another name are set out in Part 2.

         (2)   For subsection 27 (1) of the Act, the kinds of business name that are undesirable for the purposes of the Act are set out in Part 3.

         (3)   For subsection 28 (1) of the Act, a word or expression set out in Part 4 is restricted.

Part 2                 Rules for determining whether business names are identical or nearly identical to other names

Division 1              Rules for determining whether business names are identical or nearly identical to names other than company names

5              Matters to be disregarded

         (1)   When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, the following matters are to be disregarded:

                (a)    the use of the definite or indefinite article unless it is the whole name;

               (b)    the use of ‘Association’, ‘Co-operative’, ‘Incorporated’, ‘Limited’, ‘Ltd’, ‘No Liability’, ‘NL’, ‘Proprietary’ or ‘Pty’ in one or both names;

                (c)    whether a word is in the plural or singular number in one or both names;

               (d)    the size of characters, and the type and case of letters, any accents, spaces between characters and punctuation marks, used in one or both names;

                (e)    the order of words in the names;

                (f)    whether one or both names includes a host name such as ‘www’ or a domain extension such as ‘net’, ‘org’ or ‘com’.

         (2)   For paragraph (1) (e), each of the following is to be treated as a word:

                (a)    a character separated by spaces;

               (b)    a group of characters separated by spaces;

                (c)    an abbreviation;

               (d)    an acronym.

Examples for paragraph (b)

1   XYZ123 is a word.

2   XYZ 123 is 2 words.

6              Matters to be considered

         (1)   When comparing a business name with another name (other than a company name) to determine whether the names are identical or nearly identical, a word or expression in an item in Schedule 1 is to be taken to be the same as each other word or expression in the item.

         (2)   A business name is identical or nearly identical to another name if, despite the characters used in the name, it may be pronounced the same as the other name.

Examples

1   ‘Creative@Work’ is the same as ‘Kre8tive at Work’.

2   ‘100% Cats’ is the same as ‘100 percent Kats’.

3   ‘Dollar Shop’ is the same as ‘$ Shop’.

         (3)   For subsection (1), each of the following is to be treated as a word:

                (a)    a character separated by spaces;

               (b)    a group of characters separated by spaces;

                (c)    an abbreviation.

Division 2              Rules for determining whether business names are identical or nearly identical to company names

7              Matters to be disregarded when comparing business names with company names

                When comparing a business name with a company name to determine whether the names are identical or nearly identical, the rules in Part 1 of Schedule 6 to the Corporations Regulations 2001 (Rules for ascertaining whether names are identical) apply as if they had been made for subparagraph 25 (a) (ii) of the Act.

Note   Part 1 of Schedule 6 to the Corporations Regulations 2001 sets out matters to be disregarded in comparing one name with another for the purposes of paragraph 147 (1) (a) or (b) or 601DC (1) (a) or (b) of the Corporations Act 2001.

Part 3                 Kinds of name that are undesirable

8              Characteristics to be considered

         (1)   A business name is undesirable if the name has one or more of the characteristics in the table.

         (2)   However, if:

                (a)    a business name includes the word ‘Commonwealth’ or ‘Federal’; and

               (b)    ASIC is satisfied that the word is used in a geographical context;

the business name is not undesirable because of the use of the word.

Example

Commonwealth Avenue Pizza Parlour would not be an undesirable business name as Commonwealth Avenue is a geographical location.

Part 4                 Restricted words and expressions

9              Restricted words and expressions—Part 1 of Schedule 2

         (1)   A word or expression mentioned in an item in Part 1 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the Minister has given written consent to the use of the word or expression.

         (2)   A word or expression that has the same or a similar meaning to a word or expression mentioned in an item in Part 1 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the Minister has given written consent to the use of the word or expression.

         (3)   An abbreviation of a restricted word or expression is a restricted word or expression.

Note   Other Commonwealth, State or Territory legislation may limit trading in that jurisdiction under names containing specified words or expressions. However, such a word or expression is not restricted under this determination unless it appears in Schedule 2.

         (4)   A word or expression in item 113, 117 or 135 of Schedule 2 is not a restricted word or expression if, because of the Act under which it is incorporated or registered, it must be included in a business name held by:

                (a)    a registrable Australian body; or

               (b)    a registered Australian body.

         (5)   Despite item 124 of Schedule 2, the word ‘incorporated’ is not a restricted word if, because of the Act under which it is incorporated or registered, it must be included in a business name held by:

                (a)    a registrable Australian body; or

               (b)    a registered Australian body; or

                (c)    a registered foreign company; or

               (d)    a foreign company.

10            Restricted words and expressions—Parts 2 and 3 of Schedule 2

         (1)   A word or expression mentioned in an item in Part 2 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the Minister mentioned in the item has given written consent to the use of the word or expression.

         (2)   A word or expression that has the same or a similar meaning to a word or expression mentioned in an item in Part 2 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the Minister mentioned in the item has given written consent to the use of the word or expression.

         (3)   A word or expression mentioned in an item in Part 3 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the public authority or agency mentioned in the item has given written consent to the use of the word or expression.

         (4)   A word or expression (whether or not in English) that has the same or a similar meaning to a word or expression mentioned in an item in Part 3 of Schedule 2 is a restricted word or expression in relation to entities and businesses unless the public authority or agency mentioned in the item has given written consent to the use of the word or expression.

         (5)   Subsections (1) to (4) also apply to:

                (a)    a group of characters; and

               (b)    characters, words and expressions that are not in English; and

                (c)    characters, words and expressions used:

                          (i)    as part of another word or expression; or

                         (ii)    in combination with other words or characters.

         (6)   However:

                (a)    a word or expression mentioned in Part 3 of Schedule 2 is not a restricted word or expression if ASIC is satisfied that it is used in a geographical context; and

               (b)    the letters ADI are not a restricted word if they are used as part of another word.

Example

The letters adi appear in the word traditional. This section does not apply to use of the word traditional.

         (7)   A written consent does not need to refer specifically to the use of the word or expression in the name, or in business names generally.

Schedule 1        Words and expressions taken to be the same

(subsection 6 (1))

Schedule 2        Restricted words and expressions

(sections 9 and 10)

Part 1          Restricted words and expressions

Part 2          Restricted words and expressions unless Ministerial consent given

Part 3          Restricted words and expressions unless other consent given

Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.