Introduction
The Registrar of Companies is responsible for the approval and reservation of company names.
A New Zealand company or an overseas company intending to carry on business in New Zealand cannot be registered under a name unless that name has been approved and reserved by the Registrar (sections 20 and 333(1) Companies Act 1993).
How do I protect my business name?
This resource is intended to provide some guidelines about company names. Many businesses operate using a trade name without incorporating as a company and want some protection for that name.
A business gains a limited amount of protection for their name when they incorporate a company using that name. A trade mark registration enables the holder of the trade mark to take action against someone using an identical or similar name in relation to the same or a similar industry, regardless of whether or not it has developed a reputation and the limits of that reputation. For further information on trade marks please read trade mark articles in the information library.
The Fair Trading Act 1986 may also provide some name protection for businesses.
Processing an Application
The name that you request is checked against the Companies Register to see that it does not contravene any of the restrictions on certain names.
If a name is acceptable, the BizOffice will send you a letter confirming that the name has been reserved. If your choice of name is unavailable, we will inform you of the reason it was declined.
Names That Cannot Be Reserved
Under the Act, any name may be reserved unless it comes within any one of three categories of names that must not be reserved. These categories are:
- A name, the use of which would contravene an enactment.
- A name that is identical or almost identical to:
- Another company name, or
- A company name previously reserved by the Registrar and still available for registration.
- A name that, in the opinion of the Registrar, is offensive. (These are explained in more detail below.)
Contravention of an Enactment
Company names which include words or phrases protected by the Flags, Emblems and Name Protection Act 1981 or by any other enactment will not be approved. These include names having royal, national, international, commercial or other significance. The schedules to the Flags, Emblems and Name Protection Act 1981 are amended from time to time as words and names are added or deleted.
The Registrar does not consider whether a name could breach any other enactments (e.g. the Fair Trading Act 1986 or the Trade Marks Act 1953). Before forwarding your application to the Companies Office, you should consider the possibility of the name infringing a registered or pending trade mark. A trade mark search is recommended.
The Fair Trading Act contains a general prohibition against misleading and deceptive conduct. This could include carrying on business under a name that is misleading or deceptive. The Court, not the Registrar, determines the question of whether a name is misleading or deceptive.
Identical or Almost Identical
Certain words and phrases can be disregarded when determining whether names are identical or almost identical. The words and phrases are:
- The definite article (“the”) when it is the first word in a name.
- The following words appearing at the end of a name:
- “company”
- “and company”
- “Company Limited”
- “Limited”
- “Tapui (Limited)”
- “Unlimited”
- The following abbreviations whenever they appear in a name:
- “&” for “and”
- “no” for “number”
- “co” or “coy” for “company”
- “N.Z.” or “NZ” for “New Zealand”
- “Bros” for “Brothers”
- The typeface and case (upper or lower) of letters, accents, spaces between letters and punctuation marks.
- The use of plurals.
“Identical” can therefore have the ordinary meaning of the same in every respect or it can mean a name in which the number and order of key words is the same as those in another name.
“Almost identical” is more difficult to define but the Registrar’s policy is that it means a name in which the key words and/or the order in which they appear make that name virtually indistinguishable from another. Each case will be considered in light of its own individual circumstances.
In general, a year marker (e.g. “(1995)”) is sufficient to distinguish one name from another. For the purposes of determining whether two names are almost identical, a year marker is no different from any other word that distinguishes the names. For example, “Clothing Company Limited” and “Clothing Company (1995) Limited” are not almost identical.
Meaning of “Offensive”
The question of whether a name is offensive is entirely within the Registrar’s discretion. In exercising that discretion, the Registrar may determine that a name is offensive if it is:
- of an obscene nature or
- contrary to public policy or
- likely to offend any particular section of the community or any particular religion.
Source: New Zealand Companies Office – Information Library