Choosing a name for your organisation

12 May 2020

When you are setting up a new charity or not-for-profit (whether incorporated or unincorporated), you will of course need to come up with a name. Something that resonates with you and the team you may have working with and supporting you. Something that describes what your organisation is about. Something you can live with, at least for the mid-term.

But there are also a number of legal and other matters you need to consider.

Oh, and you may of course be thinking of changing a name you are already using, in which case, the same requirements described in this article will apply.

Legal requirements

There are some legal requirements about the use of names, many of which depend on the type of entity you choose to incorporate. For example:

  • an incorporated association needs to include the word 'incorporated' (or the abbreviation Inc) at the end of its name;
  • an organisation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) needs to include the words 'Aboriginal' or 'Torres Strait Islander' (or both) together with the word 'corporation' at the end of its name. The word 'Indigenous' can also be substituted for 'Aboriginal' and/or 'Torres Strait Islander';
  • a company limited by guarantee needs to include the word 'Limited' (or the abbreviation 'Ltd') at the end of its name, unless it meets the requirements to be allowed to operate without it; and
  • a proprietary limited company needs to include the words 'Pty Ltd' at the end of its name.

In addition, some names are specifically protected and cannot be used without specific consent by the Government. For example 'Bank', 'Anzac', 'Trust', the names of some international organisations and the names of components of the armed forces.

Names that are offensive, use bad language, are likely to deceive the public or could be confused with a government department are also likely to be refused.

And let's not forget the obvious. You cannot use a name if someone else is already using it!

Another key legal consideration is whether your preferred name does, or could, interfere with or impinge on another's intellectual property (such as a trademark).

You can of course do your own homework using resources like Internet search engines, the white pages, the yellow pages, Australia's trademark register administered by IP Australia and the Australian Securities and Investments Commission's online registers.

However, if your search reveals a potential similarity or conflict with another name or trademark, or if you want that extra level of certainty, we recommend that you engage a qualified IP professional to conduct a search and prepare you an advice about the use of the name – often referred to as a 'clearance search'.

If you would like us to help you with conducting a 'clearance search' please get in touch and one of our specialist IP lawyers will get back to you ASAP!

What about where I want to protect my new business name?

Now, if you go ahead and do your research, chances are you've come up with a fabulous business name that is appropriate for your organisation and that you identify strongly with. But be careful, if you go ahead and register this name it doesn't stop someone else from registering and using a similar name. If you want to make sure you're the only one who is legally permitted to use the name you've come up with, you may be able to register it as a trademark. If you would like help with registering a trademark, or even if you are just thinking about it, our specialist IP lawyers can help you with this too. Just get in touch here and we'll get back to you ASAP!

Other considerations
Of course there is more to it than just the legal, particularly in the world of Internet and social media.

When coming up with a name, we recommend that you also think about:

  • whether a suitable Internet domain name is available;
  • whether your preferred social media avenues have a suitable handle or user name available for use (e.g. a Facebook page, a twitter handle, a YouTube channel); and
  • how easy, or hard, it will be to build a brand around the name.
Business names
As of 28 May 2012, the Australian Securities and Investments Commission (ASIC) became responsible for registering, administering and renewing business names for all of Australia. This was made possible because of the Business Names Registration Act 2011 (Cth). Previously, each state and territory administered its own business names registration regime, meaning that eight separate registrations were necessary to register a business name nationally.

Through ASIC's online service, ASIC Connect, found by visiting ASIC's website and selecting the "business names" link, it is possible to:

  • find out if a business name is available;
  • register and renew a business name; and
  • make changes to details relating to one or more business names.

The fee for one year's registration for each business name is $36, or $85 for three years. 

Note: If you are operating under a particular business name as an unincorporated group and you choose to incorporate later down the track using the same name, you will need to provide evidence that you are the owner of that name before you will be allowed to use the name.

Have you had any interesting experiences or difficulties when choosing a name? If so, please do let us know in the comments below.

What is the difference between a trading name and a business name?

The chances are, if you've been looking at registering a name for your not-for-profit, you might have seen the terms 'trading name' and 'business name' being thrown around. We'll explain the difference here.

Before ASIC introduced the Australian Business Register (ABR) on 28 May 2012, the names that businesses were using are referred to and displayed on the ABR as the 'trading name'. These trading names are unregistered and have not been updated since the national business names register also commenced on 28 May 2012.

A 'business name' on the other hand is the name which you or your organisation has registered with ASIC, under which you operate a business.

If you would like to continue using a trading name, you need to register it as a business name (and thankfully, you have all the information above to help you do so). Luckily for you, if your trade falls within one of these exemptions, you don't need to register your name:

  • you operate under your own first and last name (e.g. 'John Smith');
  • you are in a partnership and you operate under the same name as all the partners' names; or
  • you are already a registered Australian company and your operating name is the same as your company's name.

Fun fact – one-third of all trading names have not been registered as business names!

Other important things you should know are:

  • trading names do not meet the requirements of a registered business name.
  • if you would like to remove a trading name from a registered Australian Business Number, you need to contact the ABR.

What's this business with ASIC stopping trading names (pun entirely intended)?

Although trading names are currently still displayed on the ABR, from 1 November 2023 they will be removed and only registered business names will be displayed.

When ASIC took over the registration and administration of business names, a transition period was implemented which spans from 28 May 2012 to 31 October 2023.

This is intended to allow businesses who were affected by the removal of trading names enough time to let their customers, suppliers and other stakeholders know of any changes to the name they use to conduct their business (and register their name as a business name if they want to keep using it!).

Author: Darren Fittler
Darren Fittler is one of Australia's leading lawyers specialising in serving charity and not-for-profit organisations for more than 15 years.

You can find out more about Darren Fittler here.