Enterprise Law > Study Notes > Enterprise Law Unit 700254: Topic 2: Business Structures (part II) (All)

Enterprise Law Unit 700254: Topic 2: Business Structures (part II)

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Topic 2: Business Structures (part II) Enterprise Law Unit 700254 1Topic Outcomes On completion of Topic 2 (part II), you should be able to: ◦ Outline the reasons for and importance of registering a business name ◦ Explain the legal restrictions imposed on the use of a business name ◦ Understand the three elements of a Partnership ◦ Explain the considerations for entering a lease ◦ Outline the following types of intellectual property (IP) ◦ Trademark ◦ Copyright ◦ Patents 2Business Names  Registration of a business name is required in all jurisdictions by business names legislation where the owner/s do not use their own name(s) or company name.  Can check availability and register with ASIC. An application will be refused if:  The name is already registered in the state or territory  The name is similar to a name already registered in the state or territory  The name has already been registered as a company name  Upon registration, the name is not “owned” but may be used for the period of registration 3Business Names The purpose of registration includes: ◦ Virtual monopoly rights on registration (but no proprietary right); ◦ Identification of the owners; ◦ Avoiding confusion by preventing similar or identical names being registered; and ◦ Provision of a public registry where information concerning the registered business can be accessed. 4Elements of a Partnership  The Partnership Act 1892 (NSW), s1(1) tells us a partnership is ‘… the relation which exists between persons carrying on a business in common with a view of profit …’.  Statements by the parties that they are or are not partners are not conclusive  Three elements of a Partnership  Carrying on a business  In common  With a view of profit 5Elements of a Partnership (1) Carrying on a business  In the past the courts have made a strong distinction between one-off enterprises and ongoing activity, however, today courts tend to take a more flexible approach  Preparatory work:  compare Khan v Miah (2000) and Keith Spicer v Mansell (1970) 6Elements of a Partnership Khan v Miah (2000)  Khan and Miah agreed to be partners in a restaurant business  Khan had provided funding for the project and was closely involved in the planning and acquisition of premises, purchasing furniture and setting up a bank account  Prior to opening there was a falling out and the men ended their relationship  Held: Khan was a partner 7Elements of a Partnership Keith Spicer v Mansell (1970)  Bishop and Spicer intended to form a company to run a restaurant  They didn’t end up starting a company and the restaurant never opened  Dispute arose as to liability to pay for furniture  Issue for the court was whether Spicer and Bishop were partners  Held that the parties’ arrangement didn't satisfy the ‘carrying on’ requirement 8Elements of a Partnership (2) In Common  Requires consideration of whether potential partners are carrying on the same business or two related, yet separate businesses.  A strong indication is whether they both experience the same losses/gains  See: Taxicab Co Ltd v Stone [1930] and Degiorgio v Dunn [2004] ::::::::::::::::::::::::::::::::::::::::CONTENT CONTINUED IN THE ATTACHMENT:::::::::::::::::::::::::::::::::::::::::::::::::::

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