G C Swinburne and F J McFarlane and Australian Securities and Investments Commission and Child Psychology Services Pty Ltd (Joined Party)  AATA 602 (26 August 2014)
The Administrative Appeals Tribunal has set aside a decision by the Australian Securities and Investments Commission (ASIC) to register the business names Melbourne Child Psychology and Melbourne Child Psychology Services despite an earlier registration for the name Melbourne Children’s Psychology Clinic.
Deputy President Alpins considered that, while it may be inconvenient, it was incorrect for ASIC to rely solely on a computer program to decide, in all cases, whether a particular business name was available. Rather, on some occasions, an ASIC officer will be required to exercise judgment in determining whether names are “nearly identical”. In such cases, a decision about registration may be made with the assistance of a computer program, but not by the computer program.
The decision contains a detailed analysis based on rules of statutory construction in finding that an exercise of judgment is required. The Deputy President also considered the ordinary meaning of “nearly identical” is where a name almost, but not quite, achieves a state of sameness with an earlier name. The comparison with an earlier registered name is a question of fact requiring the exercise of judgment. It is relevant to take into account grammatical, syntactical and typographical features as well as aural features with the objective of avoiding confusion. In this case, the relevant names were nearly identical.
The fact that a name is merely similar to a registered name will not preclude registration. The requirement to register a business name is not intended to protect the interests of entities that have already secured registration. Rather, it serves to protect the interests of those who engage or propose to engage with the business.
It remains to be seen how ASIC will respond to this set back and whether it modifies its current automated processes.