Business Names Registration (Availability of Names) Determination 2012

Link to law: https://www.comlaw.gov.au/Details/F2012L01045

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
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.