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Business Names Registration Bill 2011

Part 5 Cancelling the registration of a business name

   

42   Cancellation—request by entity to whom business name is registered

             (1)  ASIC must cancel the registration of a business name to an entity if the entity lodges a notice with ASIC requesting ASIC to do so.

             (2)  The notice:

                     (a)  must be in the prescribed form; and

                     (b)  must be lodged in the prescribed manner.

             (3)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity that ASIC intends to cancel the registration.

43   Cancellation—ASIC becomes aware of matter that would have affected registration decision

             (1)  ASIC may cancel the registration of a business name to an entity if:

                     (a)  ASIC becomes aware of a matter after the business name is registered to the entity; and

                     (b)  ASIC is satisfied that, had it known of the matter at the time the business name was registered to the entity, ASIC would not have registered the business name to the entity; and

                     (c)  ASIC is not satisfied that there are exceptional circumstances justifying the continued registration of the business name.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity:

                     (a)  of the matter that has, since registration, become known to ASIC; and

                     (b)  that ASIC will cancel the registration of the business name unless the entity satisfies ASIC that there are exceptional circumstances justifying the continued registration of the business name.

44   Cancellation—entity is disqualified

             (1)  ASIC must cancel the registration of a business name to an entity if ASIC becomes aware that the entity is disqualified.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity that:

                     (a)  ASIC has formed the view that the entity is disqualified; and

                     (b)  ASIC proposes to cancel the registration of the business name on that basis.

45   Cancellation—Ministerial determination revoked

             (1)  ASIC must cancel the registration of a business name to an entity if a Ministerial determination in relation to the availability of the business name to the entity made under subsection 27(2) is revoked.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity that:

                     (a)  the determination in relation to the availability of the business name to the entity made under subsection 27(2) has been revoked; and

                     (b)  ASIC proposes to cancel the registration of the business name on that basis.

46   Cancellation—failure to satisfy a condition of registration

             (1)  ASIC must cancel the registration of a business name to an entity if:

                     (a)  the name contains a word or expression that, under an instrument made under paragraph 28(1)(b) or subsection 28(2), is restricted unless a condition is satisfied; and

                     (b)  the entity ceases to satisfy the condition.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity that:

                     (a)  ASIC has formed the view that the entity ceases to satisfy the condition; and

                     (b)  ASIC proposes to cancel the registration of the business name on that basis.

47   Cancellation—entity not carrying on a business under the business name

             (1)  ASIC may cancel the registration of a business name to an entity if:

                     (a)  ASIC is satisfied that:

                              (i)  the entity is not carrying on a business under the business name; and

                             (ii)  the entity has not, in the immediately preceding period of 3 months, carried on a business under the business name; and

                     (b)  the entity is not a government body; and

                     (c)  ASIC is not satisfied that there are exceptional circumstances justifying the failure to carry on a business under the business name during that 3 month period.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity:

                     (a)  informing the entity that ASIC intends to cancel the registration; and

                     (b)  inviting the entity to give ASIC evidence that:

                              (i)  it is carrying on, or has within the immediately preceding period of 3 months carried on, a business under the business name; or

                             (ii)  there are exceptional circumstances justifying the failure to carry on a business under the business name during that period.

48   Cancellation—failure to provide information

             (1)  ASIC may cancel the registration of a business name to an entity if:

                     (a)  either:

                              (i)  the entity is obliged under section 35 to notify ASIC of a change to information and the entity fails to do so within the period required under that section; or

                             (ii)  ASIC requests the entity to give ASIC information under section 37 and the entity fails to do so within the period specified in the request; and

                     (b)  ASIC is satisfied that the failure to provide the information affects the integrity of the Business Names Register; and

                     (c)  ASIC is not satisfied that there are exceptional circumstances justifying the failure to give the information.

             (2)  ASIC must, at least 28 days before cancelling the registration, give notice in writing to the entity informing the entity that ASIC will cancel the registration unless:

                     (a)  the information is given to ASIC within that 28 day period; or

                     (b)  the entity satisfies ASIC that there are exceptional circumstances justifying the failure to give the information.

49   Cancellation—registration has expired

             (1)  ASIC must, at least 28 days before the registration period for the registration of a business name to an entity expires, remind the entity in writing of the time and day on which the registration period will expire.

             (2)  Failure to give a reminder in accordance with subsection (1) does not affect ASIC’s power to cancel the registration if not renewed.

             (3)  If the registration period for the registration of a business name to an entity expires, ASIC may give notice in writing to the entity that ASIC will cancel the registration unless it is renewed.

             (4)  ASIC may cancel the registration of a business name to an entity under this section with effect on the later of:

                     (a)  the end of a period of 3 months beginning when the registration expires; and

                     (b)  the end of a period of 6 weeks beginning on the day on which notice is given in accordance with subsection (3).

             (5)  To avoid doubt, a business name continues to be registered to an entity after the expiry of the registration period for the registration unless the registration is cancelled.

50   Cancellation—entity to whom business name registered ceases to exist

                   ASIC must cancel the registration of a business name to an entity (other than an individual) if ASIC is reasonably satisfied that the entity no longer exists.

51   Cancellation—business name used in infringement of trade mark

             (1)  To avoid doubt, the relief that a court may grant in an action for an infringement of a registered trade mark includes an order that the registration of a business name to an entity must be cancelled.

             (2)  ASIC must cancel the registration of the business name to the entity if:

                     (a)  a copy of the court’s order is lodged with ASIC; and

                     (b)  ASIC is satisfied, within a reasonable period after the order is lodged, that:

                              (i)  no application for the stay of the order is pending; and

                             (ii)  no appeal of the order is pending; and

                            (iii)  the order is not stayed; and

                            (iv)  the order has not been overturned on appeal.

             (3)  Nothing in this section limits any orders that a court may make (in an action for an infringement of trade mark or otherwise) in relation to the registration of a business name, or ASIC’s obligations under such orders.

52   Notification of cancellation of business name

                   If ASIC cancels the registration of a business name to an entity, ASIC must give written notice of the decision to the entity and ASIC’s reasons for the decision.

53   Notice requirements in relation to partnerships, unincorporated associations, trusts and joint ventures

             (1)  Where ASIC is required under a provision of this Part to give notice to a partnership, ASIC must also give copy of the notice to each partner within the partnership in relation to whom ASIC has details.

             (2)  Where ASIC is required under a provision of this Part to give notice to an unincorporated association or body, ASIC must also give a copy of the notice to each member of the committee of management of the association or body in relation to whom ASIC has details.

             (3)  Where ASIC is required under a provision of this Part to give notice to a trust and there are 2 or more trustees of the trust, ASIC must also give a copy of the notice to each trustee in relation to whom ASIC has details.

             (4)  Where ASIC is required under a provision of this Part to give notice to a joint venture, ASIC must also give a copy of the notice to each joint venture entity in relation to whom ASIC has details.

             (5)  In subsection (4), joint venture and joint venture entity have the same meaning as in Part 10.

54   Business name held during review period for cancellation decision

             (1)  If ASIC cancels the registration of a business name to an entity:

                     (a)  the business name is held during the review period in relation to that decision; and

                     (b)  the entity does not commit an offence under subsection 18(1) if the entity carries on a business under the business name during the review period in relation to that decision.

Note:          A defendant bears an evidential burden in relation to the matters in paragraph (1)(b): see subsection 13.3(3) of the Criminal Code .

             (2)  The review period , in relation to a decision to cancel the registration of a business name to an entity, is:

                     (a)  a period of 4 months beginning on the day on which the entity is notified of the decision under section 52; or

                     (b)  if ASIC determines a longer period under subsection (3)—that longer period.

             (3)  ASIC may determine in writing a longer review period. The determination is not a legislative instrument.

             (4)  ASIC must give a copy of the determination to the entity.