Business

Coronavirus: JobKeeper subsidy

Further to our COVID-19 blogs on employee standdowns and negotiating changes to commercial leases but in this post, the Government on 30 March 2020 announced a $130 billion JobKeeper payment system to help keep more Australians in jobs and support businesses affected by the significant economic impact caused by the Coronavirus. Those workers that are covered by the scheme will receive a fortnightly payment of $1,500 (before tax) through their employer. Employers are to pay their employees and then get reimbursed by the Government later.

The payment is intended to ensure that eligible employers remain connected to their workforce so that businesses are in a position to restart quickly when the pandemic is over.

To get the payments, employers must be eligible and the employees must be eligible.

If your business has been significantly impacted by the Coronavirus (generally able to show a 30% decline in turnover in the relevant month or quarter relative to a year earlier), the business will be able to access a wages subsidy for a maximum of 6 months to assist you to continue paying its employees.

Eligible employees are those who:

  • are currently employed by the eligible employer (including those stood down or re-hired);
  • were employed by the employer at 1 March 2020;
  • are full-time, part-time or a casual employed on a regular basis for longer than 12 months as at 01 March 2020;
  • are at least 16 years of age;
  • are an Australian citizen, the holder of a permanent visa, or a Special Category (Subclass 444) Visa Holder; and
  • are not in receipt of a JobKeeper Payment from another employer.

To register your business’s interest in the JobKeeper system, visit the Australian Taxation Office’s dedicated page.

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus or if you need to discuss how to best deal with employment issues, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Coronavirus: Employees and standdowns

Many businesses are struggling at present with the turndown in sales that are a consequence of the Government’s social distancing rules to help slow down the spread of COVID-19. Those businesses are seeking to minimise costs so as to be able to survive until the Coronavirus heath crisis ends, which appears to be at least 6 months away.

The 2 biggest expenses in business are generally rent and employee/payroll. In another blog post, we discuss how lessors and lessees can negotiate mutually beneficial but generally temporary changes to their commercial leases but in this post, we discuss employee issues.

Options for employers

It is always an option for employers and employees to agree on things such as:

  • working remotely;
  • reduced hours;
  • reduced pay; or
  • taking leave (either accrued or in advance).

Where a business is unable to agree with their staff as to such matters, or if the business needs to significantly and quickly reduce costs or go into hibernation and not just change the way it goes about its business, the first point of reference in relation to the employer/employee relationship is the Employment Contract, followed by any relevant Award. If an Enterprise Bargaining Agreement or EBA applies, then that is the place to look.

Casuals and those on probation are unfortunately the first to be let go as employers seek to minimise costs. This article assumes full time or part time employment.

Often, employment contracts have provisions that allow for the standing down of employees where there is not enough work to keep them engaged.

Assuming there is such a right, then if there is work they can do (even if not their normal role), they can be redeployed but if not, the standdown option generally would be available.

Standdowns are periods where the employment relationship is still in place but there is no payment made by the employer.

So as to keep paying employees at such a time when a standdown is warranted, a business could for example give notice of a requirement to take any accrued annual leave and possibly accrued long service leave. Taking leave in advance is also an option but it does not assist the business as it is still incurring the wage costs and the employees are then in debt to their employer for leave taken but not yet earned.

A benefit to the business of paying out leave entitlements is that this also reduces the businesses’ leave liability in its books (and the benefit to the employee is still getting paid). Note that the payment of leave loading (if leave loading is required by any Award or agreement) is also required when leave is being taken. There is generally no such payment of loading if leave is taken in advance).

Employment contracts or Awards may provided for a period of notice for a standdown but in the absence of that, reasonable notice should suffice.

Where it is not covered in any other document, s.524 of the Fair Work Act 2009 (Cth) can apply. It provides:

(1)  An employer may … stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

 …

(c)  a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Where an employer simply faces a reduction in trade volumes or where it is merely uneconomical to continue to employ staff, it can be a grey area as to whether this is considered a “stoppage” of work for the purposes of the legislation however, where an industry has been shut down as a result of a ministerial direction or public health orders, it will generally be uncontested.

Whilst on stand down:

  • annual leave, personal leave and long service continue to accrue;
  • employees can access personal and carer’s leave (provided they comply with notice and evidence requirements); and
  • employees must be paid for public holidays where it would ordinarily fall on a day they have been stood down.

The main thing to note is that on a standdown, the employees are not being terminated or made redundant – the role is still there, just they can’t be usefully engaged. It may be that termination or redundancy is still an option but it is generally a last resort.

NOTE: Since this blogpost, the Government has announced the JobKeeper subsidy.

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus or if you need to discuss how to best deal with employment issues in light of the current health crisis, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Commercial Leases

A commercial lease, simply put is the agreement between the owner of business premises (the lessor) to the tenant that is to occupy those premises (the lessee).

The terms of each commercial lease can and usually do differ depending on the nature of the property, the location and the use to which the premises are to be put. There are however many terms that are common to all leases, even if they may be drafted differently in each lease document.

Sometimes confusion arises as to whether a lease is of commercial premises as opposed to retail premises. Retail leases are covered by the Retail Leases Act and there are many additional obligations on the Lessor in relation to retail premises such as the provision of a Disclosure Statement, minimum lease term etc

Prior to entering into a lease, it is a good idea to obtain a condition report or at least take photos or video to show the condition of the premises as at the commencement date and to show what fixtures and fittings were in place.

Some key considerations in relation to a business or commercial lease include:

  • Development consent for the intended use of the premises
  • Term
  • Options to renew or buy
  • Rent
  • The process for and timing of rent reviews (CPI, market, fixed increase etc)
  • Outgoings
  • Security bonds
  • Director guarantees
  • Costs
  • Insurances
  • Repair and maintenance obligations
  • Lessee’s make good and refurbishment obligations on termination
  • Any pre-lease works/promises made
  • Assignment and sub-letting/licensing

It is not uncommon for the parties to enter into a Heads of Agreement or similar document whereby some or all of the above matters and more are documented briefly, such that the key terms are signed off as agreed, but it is usually important to ensure that this document itself doesn’t create a lease and is in fact subject to the parties negotiating and signing a formal written Commercial Lease.

Leasing can be complicated so it pays to seek the advice of a lawyer before entering into a Commercial Lease, an Agreement for Lease or a Heads of Agreement.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to the leasing or licensing of business premises, commercial law or business related matters, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Employment Contracts

Are the Employment Contracts used by your business up to date?

Employees are arguably the most important asset of your business. They are also potentially one of the most risky.

Employees have contact with customers, form relationships with them, suppliers and referrers, have access to all of your other business assets such as databases, intellectual property and trade secrets.

When an employee leaves your organisation, there is potential for them to take more then their personal belongings with them when they go.

Employees are arguably the most important asset of your business. They are also potentially one of the most risky

For these reasons having a robust, yet commercial and flexible, employment agreement is essential.

What should your employment contract include?

At the very least, a contract of employment should include:

  • Position, duties and responsibilities (including whether full time, part time or casual)
  • Hours
  • Probation (for new employees or roles)
  • Remuneration and other benefits (including superannuation)
  • Leave entitlements (as well as obligations such as notice, reporting etc)
  • Confidentiality
  • Intellectual property ownership
  • Consenting to reasonable surveillance in the workplace
  • Obligation to comply with Workplace Policies including those relating to anti-discrimination and bullying, email and internet use and the like
  • Termination (including notice provisions that comply with the National Employment Standards)
  • Obligations on termination (such as returning property) and those that continue after termination (including appropriate and enforceable Restraints of Trade)
  • A copy of the Fair Work Information Statement

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to any employment related issue or any business/commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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ASIC to remove trading names from ABN Lookup

Business owners please note that from November 2018, trading names will be removed from the ABN Lookup facility.

The ABN Lookup contains a list of all Australian Business Numbers (ABN) and any associated business names.

If you want to continue to trade under a specific name, if you haven’t already done so, you must register it as a business name with the Australian Securities and Investments Commission (ASIC) as is required by the Business Names Registration Act 2001 (Cth).

You don’t need to register a business name if you trade under your own name (eg ‘John Smith’) or a company name (eg ‘John Smith Pty Ltd’), but you do need to have a business name if it’s anything else (eg ‘John Smith Plumbing’, ‘John Smith & Co’, ‘John Smith & Partners’, ‘John Smith & Sons’  or ‘John Smith & Associates’ then it must be registered).

Don’t rely on a business name registration thinking that it gives you any protection – as it doesn’t give you any protection at all – only a trade mark under the Trade Marks Act 1995 (Cth) can provide that kind of protection.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to intellectual property, commercial law or business related matters, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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The Australian Consumer Law (ACL)

Since 2011, businesses that provide goods (whether by selling or leasing them) or services to consumers in Australia must comply with certain consumer guarantees (as do manufactures and importers) imposed by the Australian Consumer Law (ACL).

Businesses must provide these ACL guarantees automatically, regardless of any other warranties they give to you or sell you.

Who is a consumer?

A person – including a business – will be considered a “consumer” if:

  1. they purchase goods or services that cost less than $40,000;
  2. the goods or services cost more than $40,000, but they are of a kind ordinarily acquired for domestic, household or personal use or consumption; or
  3. the goods are a commercial road vehicle or trailer used primarily to transport goods on public roads.

CONSUMER GUARANTEES – GOODS

Businesses that sell goods guarantee that those goods:

  • are of acceptable quality – safe, lasting, have no faults, look acceptable and do all the things someone would normally expect them to do;
  • are fit for any purpose that the consumer made known to the business before buying (either expressly or by implication), or the purpose for which the business said it would be fit for;
  • have been accurately described;
  • match any sample or demonstration model;
  • satisfy any express warranty (ie, anything promised by the business about the goods);
  • have a clear title, unless you otherwise advise the consumer before the sale;
  • come with undisturbed possession, so no one has the right to take the goods away from or to prevent the consumer from using them;
  • are free from any hidden securities or charges; and
  • have spare parts and repair facilities reasonably available for a reasonable period of time, unless the consumer is advised otherwise.

Manufacturers and importers guarantee that their goods:

  • are of acceptable quality;
  • have been accurately described;
  • satisfy any manufacturer’s express warranty; and
  • have spare parts and repair facilities reasonably available for a reasonable period of time, unless the consumer is advised otherwise.

What happens if these guarantees regarding goods aren’t met?

If a business sells a good to a customer that fails to meet one or more of the above consumer guarantees, they are entitled to a remedy – either a repair, replacement or refund and compensation for any consequential loss – depending on the circumstances.

Minor problems

Generally, if the problem is minor, the business can choose whether to remedy the problem with a replacement, repair or refund. If business chooses to repair and it takes too long, the consumer can get someone else to fix the problem and ask the business to pay reasonable costs, or reject the good and get a full refund or replacement.

Major problems

If the problem is major or can’t be fixed, the consumer can choose to:

  • reject the goods and obtain a full refund or replacement, or
  • keep the goods and seek compensation for the reduction in value of the goods.

What is “minor” and what is “major” when considering goods?

A purchased item has a major problem when it:

  • has a problem that would have stopped someone from buying the good if they had known about it;
  • is unsafe;
  • is significantly different from the sample or description;
  • doesn’t do what the business said it would, or what the consumer asked for and can’t easily be fixed.

Gift recipients are entitled to the same rights as consumers who bought the goods directly.

A business can’t refuse to provide a remedy if the good is not returned in its original packaging.

The buyer also must not refuse to deal with a customer about the returned good and tell them to deal with the manufacturer instead (however a manufacturer can be approached directly by the consumer).

CONSUMER GUARANTEES – SERVICES

Businesses that supply services to consumers guarantee that those services will be:

  • provided with due care and skill;
  • fit for any specified purpose (express or implied); and
  • provided within a reasonable time (when no time is set).

What happens if these guarantees regarding services aren’t met?

If a business sells a customer a service that fails to meet one or more of the consumer guarantees, the consumer is entitled to a remedy – for example, a refund, a further service to rectify the problem and in some circumstances compensation for consequential loss. The service provider must then provide the appropriate remedy.

Minor problems

If the problem is minor and can be fixed, the business can choose how to fix the problem.

The consumer cannot cancel and demand a refund immediately. The business must have an opportunity to fix the problem. If the repairs take too long, the consumer can get someone else to fix the problem and ask the business to pay reasonable costs, or cancel the service and get a refund.

Major problems

If the problem is major or can’t be fixed, the consumer can choose to:

  • terminate the contract for services and obtain a full refund; or
  • seek compensation for the difference between the value of the services provided compared to the price paid.

What is a “major” problem when looking at services?

A purchased service has a major problem when it:

  • has a problem that would have stopped someone from purchasing the service if they had known about it;
  • is substantially unfit for its common purpose, and can’t easily be fixed within a reasonable time;
  • does not meet the specific purpose the consumer asked for and can’t easily be fixed within a reasonable time; or
  • creates an unsafe situation.

EXCEPTIONS

A business may not be required to provide a remedy if a consumer:

  • simply changes their mind, decides they do not like the purchase or has no use for it;
  • discovers they can buy the goods or services more cheaply elsewhere; or
  • has misused the goods in a way that caused the issue or damaged the goods by using them in a way that was unreasonable.
  • knew of or was made aware of the fault before they bought the good;
  • asked for a service to be done in a certain way against the advice of the business.

HOW CAN BUSINESSES HELP THEMSELVES?

Although the consumer guarantees cannot be contracted out of, businesses can take steps to limit its effect, such as:

  • Putting in place appropriate Terms of Trade that confirm the understanding of the parties as to things that can often cause issues like time for delivery (as opposed to the unclear “reasonable” time), imposing obligations on the consumers as to how to properly use the goods/services and so on;
  • Putting in place appropriate workplace policies and employment contracts that limit the “promises” that sales staff may make about goods or services being sold;
  • Considering marketing and product/service detailed material so as to ensure the descriptions and promises about the goods and services are clear and correct and not misleading or likely to cause complaints.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to consumer rights, business or commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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Purchasing a Franchise?

What is a franchise?

A franchise is a business system controlled by the franchisor, using the franchisor’s symbol or trade mark for a fee, subject to rules/restrictions/restrictions as stated in the relevant Franchise Agreement.

Given the bargaining power of the franchisor and franchisee being very different, the relationship of franchisor/franchisee is regulated to help ensure fairness in their dealings.

The Australian Competition & Consumer Commission (ACCC) regulates the Franchising Code of Conduct (Franchising Code), which is a mandatory industry code that applies to the parties to a franchise agreement.

Franchising Code

The Franchising Code is in Schedule 1 to the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 made under s. 51AE of the Competition and Consumer Act 2010. The Franchising Code applies from 1 January 2015 and replaces the previous 1998 code.

In short, the Franchising Code:

  • requires parties to act in good faith (for example, reasonably, honestly etc) in their dealings
  • introduces financial penalties and infringement notices for serious breaches
  • requires franchisors to provide prospective franchisees with a short information sheet (Disclosure Document) outlining the risks and rewards of franchising
  • requires franchisors to provide greater transparency in the use of and accounting for money used for marketing and advertising and to set up a separate marketing fund for marketing and advertising fees
  • requires additional disclosure about the ability of the franchisor and a franchisee to sell online
  • prohibits franchisors from imposing significant capital expenditure, except in limited circumstances
  • provides a dispute resolution process

Disclosure Document

An important requirement of the Code is the requirement for the franchisor to provide a prospective franchisee with a “Disclosure Document”.

The purpose of the Disclosure Document is to provide prospective franchisees, and existing franchisees that wish to renew or extend their existing agreement, with information about the business and the franchisor to allow the franchisee to make an informed decision about the franchise and obtain current information regarding the franchised business.

The Disclosure Document must provide information on the business, including:

  • the franchisor, its contact details, its business and its directors and their business experience
  • details of any master franchisor
  • the franchise site or territory
  • details of legal proceedings against the franchisor and its directors
  • contact details of current (and former) franchisees
  • financial details
  • the franchisor’s requirements for supply of goods or services to a franchise
  • whether online saes are permitted and any restrictions
  • details on marketing or other cooperative funds
  • details of payments such as pre-payments, establishment costs and other fees
  • details on any trade marks and patents that are part of the franchised business
  • details of arrangements when the franchise arrangement ends

If you are purchasing a franchise, before entering into an agreement, you should seek legal and accounting advice.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to buying/selling businesses, franchises or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Buy/Sell Deeds explained

WHY HAVE A BUY/SELL DEED?

A Buy/Sell Deed is an agreement between the owners of a company or unit trust that upon the death or permanent disablement of a director or key person associated with a shareholder/unitholder, that shareholder/unitholder must transfer its shares to the remaining shareholders in exchange for payment.

The method of determining the price is agreed and the funding of that payment usually comes from the proceeds of insurance policies to be taken out for those risks by the shareholders/unitholders.

A Buy/Sell Agreement is not a general Shareholders Agreement or Unitholders Agreement so it does not regulate all dealings in relation to the company.

COMMON SCENARIOS A BUY/SELL COULD HELP PREVENT

Consider the following and how it may affect you and your company…

  • A shareholder dies and you as the remaining shareholder inherit an unintended (and potentially non-income producing) business partner such as the deceased shareholder’s spouse (as they receive the deceased’s assets via their Will), with company profits being paid out according to the shareholdings.
  • You have to buy shares from a deceased shareholder’s estate above their value.
  • Your family do not get the best price for your shares in the company.
  • The remaining shareholders don’t have available funds to pay out a deceased shareholder or a shareholder who can no longer contribute to the business due to total and permanent disability.
  • The business either needs to be sold or funds need to be borrowed by the remaining shareholders or the company to make the payments.
  • A key person to the company has died, leaving the company in the position of losing a key source of revenue, client relationships and knowhow, affecting the value of the company and its business and its viability in the future.

CERTAINTY

A Buy/Sell Agreement is designed to bring certainty in relation to the exit from a business as the result of death or permanent disability of a key person – certainty for an ill shareholder, a deceased shareholder’s family, the remaining owners and the company itself. Don’t leave it to chance.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to Buy/Sell Deeds, Shareholders Agreements, any or any commercial dispute or issue, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Selling your business?

So you have an offer to buy your business. How exciting!

Although there may be agreement on the price being paid and the amount of deposit, what else needs to be considered?

  • How is the price apportioned between goodwill and equipment?
  • Have you considered the costs associated with the sale – you may have an agreement with a business broker, but there are lawyers, accountants, financial advisers also.
  • What about tax, capital gains tax (CGT) in particular, and is GST payable?

Who does what?

You need good advice. You are great at what you do, but you cant do everything. You need a great team of advisers – this is their thing.

Your lawyer will be required to prepare the legal documents that give effect to the sale (such as Business Sale Contract, Share Sale Agreement, Deed of Restraint, Deed of Consent to Assignment of Lease, Employment Contracts, Deed of Novation, Consultancy Agreements etc… yes, there may be others).

Your accountant can advise on the price apportionment and taxation implications, whether GST is payable or not, and how to make the most of any CGT concessions, exemptions and rollover relief such as those relating to small business and retirement.

Your financial adviser can give you advice on what to do with your cash to make the most of it now or in retirement.

What are you actually selling?

It would seem obvious, but have you considered what you are actually selling? Are you selling your business or, in the case of a company or unit trust, the entity that owns it?

There is a big difference, particularly given that entitlements to income and liability for expenses incurred prior to completion of the sale will remain with the vendor under a business sale whereas in the case of a share sale, the whole lot will be under the control of the purchaser from completion.

This will also affect how much due diligence a purchaser may undertake – as any prudent purchaser would have concerns about potential claims, tax debts etc

The usual things

Assuming a sale of business, not a share sale, some of the other things to consider is what is included in the sale?

  • Business name
  • Plant and equipment used by the business
  • Stock
  • Customer lists
  • Agreements with suppliers, referrers… to the extent they can be transferred
  • Phone/fax numbers, logos, domain names, email addresses social media etc
  • Intellectual property – do you have any trademarks?
  • Licenses/permits to operate the business
  • Are staff being terminated or transferring to the purchaser? What are employee entitlements are due?
  • Are the business premises leased? Is the agreement subject a an assignment of the existing lease or the granting of a new lease?
  • Personal Property Securities Register issues – for example, is the telephone system under a hire purchase agreement? Is the photocopier leased?
  • Do you need the consent of anyone to the sale proceeding? Eg, a franchisor, a mortgagor, someone you have given a first option to purchase to for example?
  • Are there to be restraints of trade/non-competition provisions that affect you? What about for key staff?

Although an exciting time, there are many issues that need to be considered when you are selling your business. The abovementioned items are certainly not an exhaustive list of things to consider and every business is different, but hopefully it gets you thinking about what you may need to consider when selling your business.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to buying/selling businesses, intellectual property or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Business names and trade marks are the same thing, right? Wrong

A BUSINESS NAME DOES NOT CONFER OWNERSHIP

Having a business name is a requirement so that people can ascertain the owners of a business they are dealing with. The register of business names is now maintained by ASIC.

Registration of a business name is required before carrying on a business or trade within Australia. Exceptions to registration include:

  • those operating as sole traders with their operating name being identical as their first name and surname (tip – if it has ‘& Co’, “& Partners” or ‘& Associates’ it must be registered);
  • partnerships where the operating name is the same as all of the partners’ names;
  • registered Australian companies whose operating name is the same as the company’s name (ie, with the “Pty Ltd” added).

While a business name is often used as a brand or trademark, having business name registration does not give ownership of that name. Only a trade mark under the Trade Marks Act 1995 (Cth) can provide that kind of protection.

Don’t rely on a business name registration thinking that it gives you any protection – it doesn’t give you any protection at all.

If you register a business, company or domain name, you do not automatically have the right to use that name as a trade mark. The same word(s) may be able to be registered by different people as a business name in other states and territories.

A REGISTERED TRADEMARK IS NECESSARY TO OWN A NAME

If you have a registered trade mark, you do have exclusive use of the trade mark throughout Australia (and other jurisdictions if you obtain registration there also) and you can take legal action for infringement of your trade mark if another person or entity uses it for goods or services like those covered by your trade mark registration.

A trademark can be a word or words, a phrase, a logo or a combination thereof (and even scents, sounds and colours!) which identify and distinguish a business’s goods or services from those of others. You can also trade mark your domain name if it fits within the requirements of the legislation.

There is no legal requirement to use the TM or ® symbols however, the TM symbol indicates that you have a pending application for the brand or that you are claiming some rights in the name without trademark registration whereas the ® symbol indicates that the trademark is registered.

After establishing or growing a business, the last thing you would want to do is receive a ‘cease and desist’ letter from the lawyers of a competitor asking you to cease using their client’s trade mark and to account to them for profits you have made, so don’t rely on a business name registration thinking that it gives you any protection, as it does not!

If you or your clients that are trading without a registered business name or under a brand without trademark protection, then they should be referred for advice by an expert in the area.

Similarly, if you have a trademark and become aware of someone infringing on your trademark, such as by using a very similar name or logo or indicating they have some association with your business or products when they do not, you should get advice from a lawyer on sending an appropriately worded letter asking them to cease using it,

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to intellectual property licensing or infringement or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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