Business Names Registration (Availability of Names) Determination 20121
Business Names Registration Act 2011
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
Parliamentary Secretary to the Treasurer
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.
Item
Characteristic
1
In the opinion of ASIC, it is likely to be offensive to:
(a) members of the public; or
(b) members of any section of the public
2
In the context in which it is proposed to be used, it suggests a connection with any of the following that does not exist:
(a) the Crown;
(b) the Commonwealth Government;
(c) the Government of a State or Territory;
(d) a municipal or other local authority;
(e) a department, authority or instrumentality of the Commonwealth Government;
(f) a department, authority or instrumentality of the Government of a State or Territory;
(g) the government of a foreign country;
(h) a member of the Royal Family;
(i) the receipt of Royal patronage;
(j) a charitable organisation;
(k) an ex-service personnel organisation or ex-service personnel generally;
(l) Sir Donald Bradman;
(m) Mary MacKillop;
(n) the United Nations
3
In the context in which it is proposed to be used, it suggests that the members of an organisation are totally or partially incapacitated and those members are not so affected
(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))
Item
Word or expression
101
accom, accommodation, holiday accommodation
102
holiday apartments, holiday units
103
b & b, bed and breakfast,
104
hotel, inn
105
motel, motor inn, motor lodge
106
airlines, air services, aviation, aviation services
107
aquatic centre, aquatics, swimming pool
108
art, art gallery, artworks, fine art, gallery
109
cakes, cake shop, cupcakes
110
pastries, patisserie
111
bakehouse, bakery
112
bread, hot bread, hot bread kitchen, hot bread shop
113
beauty, beauty boutique, beauty clinic, beauty salon, beauty studio, beauty therapy
114
nails, nailz
115
body care, skincare, skin therapy
116
spray tan, spray tanning
117
bicycles, bikes, cycles
118
build, builders, buildings, building services, construct, constructions, construction services, fabrications
119
homes, quality homes
120
carpenters, carpentry, carpentry services
121
joiner, joinery
122
bricklayers, bricklaying, bricklaying services, blocklaying
123
additions, extensions
124
home improvements, home renovations, renovate, renovations, renovators
125
buses, bus service, coaches, coach service
126
dog grooming, dog wash, grooming, pet grooming
127
caterers, catering, catering services
128
ceramics, ceramic tiles, ceramic tiling, tiles, tiling
129
charcoal chicken, chicken
130
child care, child care centre, children's centre, childrens centre, day care, family day care, long day care centre
131
kindergarten, kindy, pre-school, preschool, pre-school kindergarten, preschool kindergarten
132
domestic cleaning, domestic cleaning services, home cleaning, home cleaning services
133
carpet cleaners, carpet cleaning
134
apparel, clothes, clothing, wear
135
alterations, clothing alterations, dressmaking
136
boutique, couture, creations, fashion, fashion boutique, fashions
137
barista, coffee, espresso, espresso bar
138
paints, paint supplies
139
perfumes, scents
140
artisans, crafts, handcrafts
141
blinds, curtains
142
academy of dance, dance academy, dance centre, dance studio, school of dance
143
master painters, painters, painting, painting contractors, painting service, painting solutions
144
painters and decorators, painting and decorating, painting and decorating services
145
doors, door services
146
garage doors, roller doors
147
earthmoving, excavations
148
bobcat and tipper hire, bobcat hire, bobcats, diggers, earthmovers, mini diggers, tipper hire
149
cafe, cafe bar, caffe, kafe
150
diner, dining
151
eatery, eats
152
restaurant, ristorante
153
fast food, food, food bar
154
snack bar, snacks
155
takeaway, take away food
156
pizza, pizza bar, pizzeria
157
seafood, seafood restaurant
158
sandwich bar, sandwiches
159
coffee bar, coffee house, coffee lounge, coffee shop
160
elec, electrical, electrical service, electricians, electrics, electrix, electronic services
161
exhaust, exhaust centre, mufflers
162
credit, finance, lending, loan centre, loan office, loans, money
163
firearms, guns
164
fitness centre, gym
165
exercise, fit, fitness, workout
166
mats, rugs
167
blooms, flora, florist, flowers, flower shop
168
food market, food store
169
fresh produce, produce
170
funeral directors, funeral home, funerals, funeral services
171
cremations, crematorium
172
fine furniture, furniture, home furniture
173
garden care, garden design, gardener, gardening, garden maintenance, garden services, garden solutions
174
tree lopping, tree lopping service
175
yard maintenance, yard services
176
landscape design, landscapes, landscape services
177
glass, glass and glazing, glass service, glazing
178
leadlight, stained glass
179
grocer, grocery, grocery store
180
milk bar, mini mart, mixed business
181
cuts, cutz, hair, hair boutique, hair centre, hair cut, hair design, hairdresser, hairdressing, hairdressing salon, hair fashions, hair salon, hair studio, hair stylist, salon
182
barber, barber shop
183
caps, hats
184
audio, hi fi
185
assurance, insurance, insure
186
fashion jewellery, fine jewellery, gems, jewellers, jewellery, jewelry, jewels
187
watches, watchmakers
188
coin laundry, laundrette, Laundromat, laundry
189
lawyers, legal, legal services, solicitors
190
limo, limousine hire, limousines, limousine service
191
bottle shop, cellars, liquor, liquor store
192
cruisers, marine, yacht
193
boat charters, boat hire, boating, charters, fishing charters, yacht charters
194
butcher, butchery
195
fresh meats, meat market, meats, meat supply, quality meats
196
automotive, automotive service centre, automotive services, auto service, auto service centre
197
automotive repairs, auto repairs, car repairs, motor repairs
198
mechanic, mechanical, mechanical repairs, mechanical services, mechanics, motor mechanics
199
clinic, health care, medical centre, medical practice, medical services, medicine, medicine centre, practice, surgery
200
nurses, nursing
201
automobiles, autos, auto sales, cars, car sales, motor group, motors
202
moto, motorcycles
203
lawn care, lawnmowing, lawn mowing service, lawns, mow, mowing, mowing service
204
music, music centre
205
body therapies, natural therapies, natural therapy centre, remedial therapy, therapeutics, therapies, therapy centre
206
massage centre, massage therapy, remedial massage, sports massage, therapeutic massage
207
naturopath, naturopathic clinic, naturopathy
208
news, newsagency, newsagent
209
eyewear, optical, optical services, specs
210
optometrists, optometry
211
auto body repairs, body repairs, body shop, body works, crash repairs, dent removal, motor body repairs, panel beating, panels, panel works, smash repairs
212
concrete pumping, concreting, crete, formwork
213
brick paving, pave, paving
214
pest control, pest control services, pest management, pest management service
215
fuel, petrol, petroleum
216
pets, pet shop
217
chemist, dispensary, drug store, pharmacy
218
photo, photo art, photographer, photographics, photographic services, photography
219
pics, pix, shots, snaps
220
plumbers, plumbing, plumbing contractors, plumbing services, plumbing solutions
221
drainage, drainage services, drain cleaning, draining
222
gasfitter, gasfitting, gas services
223
guttering, gutters
224
pub, tavern
225
bar, lounge, saloon
226
real estate, real estate group, real estate services, realtors, realty
227
property group, property investment,
228
roofing, roofing services, roof repairs, roof restorations, roof tiling
229
movers, relocations, removalists, removals
230
footwear, shoes
231
bedding, mattress
232
deli, delicatessen
233
candy, confectionery, lollies, lolly shop, sweets
234
cabs, taxi, taxi service
235
fone, phones
236
mobile phone, mobiles
237
tobacco, tobacconist
238
holidays, travels, trips
239
touring, tours
240
grass, turf
241
film productions, films, pictures, film services
242
demolition, wreckers
243
aust, australian
244
co, company, coy
245
corp, corporation
246
inc, incorporated
247
no, number
248
conveyancer, conveyancing, settlement agency, settlement agent, settlements
Schedule 2 Restricted words and expressions
(sections 9 and 10)
Part 1 Restricted words and expressions
Item
Restricted word or expression
101
Aboriginal Corporation
102
Aboriginal Council
103
Advance Australia
104
ambulance
105
Australian Made
106
Chamber of Commerce
107
Chamber of Industry
108
Chamber of Manufacturers
109
charitable
110
charity
111
chartered
112
consumer
113
co‑operative
114
executor
115
fiduciary
116
fire brigade
117
friendly society (otherwise than in relation to the conduct of a financial business)
118
futures exchange
119
GST
120
G.S.T.
121
guarantee
122
ICPO (International Criminal Police Organisation)
123
incorporated
124
Interpol
125
Lest We Forget
126
Made in Australia
127
Order of the Eastern Star
128
police
129
policing
130
proprietor
131
R.S.L.
132
RSL
133
securities exchange
134
securities market
135
Starr-Bowkett
136
stock exchange
137
Torres Strait Islander Corporation
138
trading as
139
trust
140
trustee
Part 2 Restricted words and expressions unless Ministerial consent given
Item
Word or expression
Minister
201
Anzac
Minister for Veterans’ Affairs
202
Geneva Cross, Red Crescent, Red Cross, Red Crystal, Red Lion and Sun
Minister for Defence
203
United Nations
Minister for Foreign Affairs
204
University
Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Part 3 Restricted words and expressions unless other consent given
Item
Word or expression
Public authority or agency
301
ADI
APRA
302
authorised deposit‑taking institution
APRA
303
bank
APRA
304
banker
APRA
305
banking
APRA
306
building society
APRA
307
credit society
APRA
308
credit union
APRA
309
friendly society (in relation to the conduct of a financial business)
APRA
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.
