[DNS] Business Names (was .au space proposal)

[DNS] Business Names (was .au space proposal)

From: David Keegel <djk§cyber.com.au>
Date: Fri, 24 Nov 2000 22:04:34 +1100 (EST)
Like Richard Archer, I Am Not A Lawyer.

] > Nobody has advised me that we were or are contravening any State or
] > Federal laws, and even if I was so advised, obviously I would need to
] > verify your credentials to make such a claim. Further that under
] > Australian law the claim would still be subject to contest - unless
] > anyone here is a sitting magistrate addressing this issue.
] 
] I think you're mixing up the two answers here.  In fact I don't entirely agree
] with Richard Archer who wrote:
] 
] > IMHO (IANAL) you're not legally allowed to trade under the name
] > "Coolah Telecentre" without registering the appropriate business
] > name. The States and Territories each have a Business Names Act which
] > is clear on this matter
] 
] It's perfectly true that you may not carry on a business under a *business
] name* unless that name is registered under the relevant Act.  Apart from
] government bodies, there is only one exception to that rule and that is a
] personal name such as "Don Cameron" as it is considered that you were
] registered with that name at birth.

I think I agree with both Patrick and Richard here.
 
] You could also buy a copy of the Act and see for yourself.

You can find the NSW BUSINESS NAMES ACT 1962 at:
  http://www.austlii.edu.au/au/legis/nsw/consol_act/bna1962168/index.html
It includes:
``
5 Certain business names to be registered

(1) A person shall not either alone or together with other persons carry on
business in the State under a business name unless:

   (a)  the business name consists of the name of that person and the name of
        each other person, if any, in association with whom that person is so
        carrying on business, without any addition, or

   (b)  the business name is registered under this Act in relation to that
        person and each other person, if any, in association with whom that
        person is so carrying on business and any provisions of section 12
        that are applicable have been complied with by or on behalf of the
        person or persons in relation to whom the business name is registered.
Maximum penalty: 50 penalty units.
''
 
The way I read this, if someone is carrying on business in NSW under
the name "Coolah Telecentre", then one of the following is true:
* The person is an individual called "Coolah Telecentre"
* The person is a corporation whose corporate name is "Coolah Telecentre"
* The person has registered "Coolah Telecentre" as a NSW business name
* The person is breaking NSW law.

You may notice that nothing above mentions domain names - we are just
talking about the NSW Business Names Act 1962.

On the other hand, if you are not carrying on business under the name
"Coolah Telecentre", then it is not clear what is your basis for thinking
you are entitled to register "coolahtelecentre.com.au".

If you are not `carrying on business' (which seems possible since you say
the entity is Not For Profit), then a domain like org.au or asn.au (or
maybe net.au) would seem more appropriate than com.au.  Although you would
still need to give some evidence that there is an organisation called
something like "Coolah Telecentre".

] > Running a web site with the domain name "coolahtelecentre.com.au"
] > when this bears little resemblance to your trading name would
] > potentially breach the business names act.

Running a web site does not necessarily mean carrying on business.
It depends what you do with the web site, and what else you do.

] Doug Robb has a reference which suggests:
] 
]         "Quite simply, there is no requirement for a
]         domain name to be registered as a business name."

I'd agree.
 
] If you are trading under the name "Coolah Telecentre" without a registered
] business name then you are potentially in breach of the Act.  What constitutes
] *trading* is a matter of fact, not law.  All of the circumstances need to be
] taken into account.

] > Your option here is to begin trading under the name "Coolah
] > Telecentre" by registering the appropriate business name.
] 
] I'd take that advice.  For $1 a week It's not really worth arguing about.

PS: Don, you should update your details in AUNIC.  (See www.aunic.net.)

__________________________________________________________________________
 David Keegel <djk&#167;cyber.com.au>  URL: http://www.cyber.com.au/users/djk/
Cybersource P/L: Unix Systems Administration and TCP/IP network management
Received on Fri Nov 24 2000 - 19:04:40 UTC

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