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Identical names

Date

Identical body corporate names

The general rule under the Corporations Act is that identical names cannot be registered. Subsections 147(2) and 601DC(2) give the Minister discretion to vary this general rule. However this discretion is used only in exceptional cases.

Rules 6101(a)-(e) in Part 1 of Schedule 6 of the Corporations Regulations have clearly provided that in comparing one name with another for paragraph 147(1)(a) of the Corporations Act:

  • the use of the definite or indefinite article;
  • the use of 'proprietary', 'Pty Ltd', 'Limited', 'Ltd', 'No Liability' or 'NL' in one or both names 'Corporation' or the abbreviation 'Corp';
  • the pluralisation of a word or words in one or both names;
  • the type size and case of letters the size of numbers or other characters and any accents spaces between letters numbers or characters or punctuation marks used in one or both names;

are to be disregarded.

There are three valid exceptions to the rule that identical names should not be registered. These are:

  • where two identical company names were registered by mistake and some years elapsed before the mistake came to light, by which time both companies had generated large amounts of goodwill in the names;
  • where two companies in different states were registered under the same name prior to the commencement of the current scheme; and
  • situations where the applicant can show that the name has been 'squatted on' by a person who has a history of reserving company names for no genuine purposes of his own. This history can be established through ASIC records, complaints to ASIC and Treasury records.

In such cases, both names may be available. While each case is treated on the merits, identical names are unlikely to be permitted in other circumstances.

Body corporate names identical to existing business names.

The Minister has no ability to consent to a body corporate name identical to a registered business name held by another person or body corporate.