Constitution of Pty Ltd company

Step 1️⃣: Proactively Protect your IP/Brand

We strongly recommend you take preliminary steps to protect your Intellectual Property/Brand or ensure that the IP/Brand of the business in which you are considering investing has a minimum level of protection.

This will assist you in quickly identifying any potentially similar business names which may cause brand confusion and may afford you the opportunity to reconsider your business name so that it is more unique.

This can include quick inexpensive online tasks via the Australian Securities & Investments Commission's (ASIC) website such as:

✅ Checking the availability of a business name; and

✅ Registering for a business name. ; or

✅ Reserving a business name.

‍Reservation period:  A business name is reserved for a period of 2 months from the date of ASIC's approval.

Extension of name reservation: An application for an extension of name reservation for a further period of up to 2 months can be lodged with ASIC prior to the reservation expiry date.

Reasons for the extension must be provided in detail on the form or in an annexure.

An application for an extension will only be granted if ASIC finds your reasons acceptable.

If insufficient reasons are provided the reservation extension will be rejected by ASIC.

Only in very exceptional/extenuating circumstances will ASIC allow more than 2 extensions to be granted.

Step 2️⃣: Secure your .com.au/.net.au + the new .au domain/s

We also recommend that as soon as you qualify (refer below) you take additional steps to protect your Intellectual Property/Brand by securing your Australian web domain (as well as similar web domains).

Am I eligible to register .com.au and .net.au + the new .au domain names?

Important: The law regulating the right to acquire and renew .au domain names has recently been amended.

Until we can review the changes and update this FAQ to reflect the current legal position, we strongly recommend that you contact our legal team for advice.

“In accordance with (recently amended) Australian Domain Name Policy, to be eligible to register .com.au and .net.au domain names, registrants must be classified as one of the following:

✅ An Australian registered company;

✅ Trading under a registered business name in any Australian State or Territory;

✅ An Australian partnership or sole trader;

✅ A foreign company licensed to trade in Australia;

✅ Be an applicant or owner of an Australian Registered Trademark;

✅ An association incorporated in any Australian State or Territory;

✅ An Australian commercial statutory body”

Step 3️⃣: Start to learn about your options and the Australian Regulatory Regime

We strongly recommend that you commence the process of learning + understanding your options regarding doing business in Australia by using our free resources.

For example:

Foreign Investment +/or Doing Business in Australia ➲ Primer + Quiz*

Intellectual Property [IP] Law ➲ Basic Quiz (Level 1: Australian IP)

Intellectual Property [IP] Law ➲ WIPO Quiz (Level 2: Global IP)

Once you have completed our online Primer + Quizzes, we recommend you contact us with your detailed queries.

Note: Australia's Foreign Investment Review Board (FIRB) Regime has been significantly amended as at 1 January 2021

*[our Foreign Investment +/or Doing Business in Australia Primer + Quiz has not yet been updated to incorporate these recent FIRB changes].

Step 4️⃣: Consider making an application for an Australian Registered Trademark

We strongly recommend that you contact us to assist you in engaging the services of a registered trademark attorney.

Step 5️⃣: Seek legal advice regarding what constitutes "carrying on business" in Australia

This is a complex legal question that involves consideration of many factors so it is important to understand that legal advice is always required.

For example:

In 2016 a large foreign e-commerce “services” website was deemed to be “carrying on a business” in Australia in the leading Federal Court of Australia case Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196.

The foreign website had no physical local Australian presence other than a farm of computer servers valued at $1.2 million which the Court considered valuable personal property located in Australia.

The following is an extract of the relevant headnote summary:

CONSUMER LAW

– meaning of “carry on business in Australia” is s 5(1)(g) of the Australian Consumer Law

– whether respondent “carries on business in Australia” when it has 2.2 million Australian subscriber accounts, generates large Australian revenues, has valuable personal property in Australia, has business relationships in Australia, and incurs tens of thousands of dollars of monthly expenses in Australia

The above case involved the sale of "Services".

By their very nature, foreign eCommerce websites selling “Goods” are more likely to be deemed to be carrying on business in Australia as generally the goods are physically delivered to Australia.

Therefore, if your foreign eCommerce website sells "Goods" at a minimum you will need to consider:

• Is there or is there planned to be any local storage/distributors/etc. for the goods?

Step 6️⃣: Goods + Services Tax (GST) Registration for Sales connected with Australia

You may or may not be aware that there is a threshold of $75k AUD for sales to Australian Consumers which may trigger the need to register for our Goods & Services Tax (similar to the VAT in the UK).

This threshold applies whether or not you are carrying on a business in Australia, it may be enough to trigger the obligation if you make sales to Australian Consumers from your foreign eCommerce website.

You also need to be aware of your obligations if you sell imported services, digital products and low-value goods imported into Australia with a customs value of AUD $1,000 AUD or less when the price is first agreed with the consumer (except for tobacco products or alcoholic beverages).

• For consignments of goods imported over AUD $1,000 any GST, customs duty and clearance charges are charged to the importer at the border.

If all of these sales are made through an online marketplace or electronic distribution platform you may not need to register for GST.

For more information about sales made through an electronic distribution platform, see if you are an EDP operator.

For more information and rulings about sales connected to Australia, see:

• GSTR 2017/1 Goods and services tax: making cross-border supplies to Australian customers
• LCR 2018/1 GST on low-value imported goods
• LCR 2018/2 GST on supplies made through electronic distribution platforms
• LCR 2018/3 When is a redeliverer responsible for GST on a supply of low-value imported goods?

Source: ATO website - International tax for business (GST)

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.