Category: Uncategorized

Registered business names

The nature of a registered business name (RBN) is a common source of confusion and misunderstanding. A frequent misconception is that an RBN is a form of trade mark: it is not. Having an RBN is a simple compliance requirement and does not offer any protection in the name registered.

Couldn't they have used something snappier?
Couldn’t they have used something snappier?

Running a business

There are a range of ways in which a business can be operated:

  • By an individual (as a sole trader). An individual running a business is personally and fully liable if sued. Sole traders do not have to register with the Companies Registration Office (CRO) and are governed by the general law, rather than any specific regulatory law.
  • By a partnership. The individual members of the partnership are jointly and severally liable if sued. Most partnerships do not register with the CRO. They are governed by the Partnership Act 1890. When sued, the defendant is listed with the individual partners named individually along with the partnership name (eg. Joe Bloggs v. Jane Bloggs, Jack Bloggs and Joanne Bloggs, practising under the name and style of Bloggs & Partners Solicitors).
  • By a limited company. There are various types of limited company and additional incorporation options have been proposed. Unlike a sole trader or partnership, a limited company is a legal person in its own right, distinct from its shareholders. The liability of shareholders is limited in accordance with the share structure of the company. The Companies Acts regulate the operation of limited companies.

Using a business name

Whatever of the above structures one uses to carry on business, an RBN will often be necessary. Where a name is used in the course of business that is not true name of the business, the Registration of Business Names Act 1963 requires that the name is registered with the CRO.

The following are common examples of when registration is required:

  • Jane Bloggs runs a corner shop. If she calls the shop Bloggs’ Stores, she must register that as an RBN. She will then be Jane Bloggs trading as (t/a) Bloggs’ Stores.
  • Joe Bloggs runs a construction company, Joe Bloggs Construction Limited. If the company trades as Bloggs’ Builders it must register that name. The company will then be Joe Bloggs Construction Limited t/a Bloggs’ Builders. A company cannot trade as another company – eg. Joe Bloggs Construction Limited t/a Bloggs Limited.

Why must you register?

The system of business name registration allows other people to find out who runs the business. This is not a problem if a business is run under a person’s own name or under a company name, which can be searched against in the CRO. But if an assumed name is used, how is a customer or supplier to know what legal entity is behind the business? The question often arises as follows: who do I sue?

The requirements of the Registration of Business Names Act 1963 are often not observed and, it would seem, enforcement is not a priority. The equivalent legislation in the UK was repealed in 1982 and business name registrations are no longer possible there.

What a business name is not

  • A form of company. You might register a business name with the CRO, but this is not incorporation. The registration merely puts on public record that the registrant carries on business using the registered name.
  • A trade mark. A registered business name is not a form of intellectual property and it offers no exclusive right to use the name registered. It is not a trade mark, registered or otherwise. In fact, duplicate entries are often found in the register of business names. By contrast, a particular trade mark can only be registered once.

Letting people know

If a business uses a registered business name, all business letters, circulars and catalogues on or in which the business name appears must contain the following information in legible form:

  • in the case of an individual, his/her present name, any former names, and his/her nationality, if not Irish; and
  • in the case of a partnership, the present name and any former names, and the nationality, if not Irish, of all the partners in the firm.

An additional set of disclosure rules apply to Irish-registered companies, whose letters, notices, publications, order forms and websites must contain specific information.

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Judges’ pay: an unnecessary, Government-created controversy

The political football of judges’ pay has been thrown back on the pitch by Fine Gael. In today’s Irish Times, Alan Shatter (FG/DSth) makes the argument for his proposed constitutional referendum.

Fine Gael’s front bench spokesperson on children, and himself a prominent solicitor, suggests that the voluntary scheme by which judges can currently volunteer to pay the pension levy is a “slippery slope”, as it cause judges to fear that they will only be promoted if they volunteer to pay the levy. This would run counter to the spirit of Article 35.5 of the Constitution, which says that “[t]he remuneration of a judge shall not be reduced during his continuance in office” and is aimed at protecting the separation of powers and judicial independence.

Deputy Shatter makes a crucial point: “judges should not be perceived as succumbing to political pressure or as an elite living in a financial ivory tower immune from the financial emergency confronting the State.” The Government’s handling of the issue has invited both possibilities, but is Deputy Shatter’s conclusion that a referendum is necessary correct or desirable?

Today’s piece in the Times and Mairead Enright’s post over at Human Rights in Ireland cover the law on this topic. Many in the legal profession were surprised by the Government’s decision not to include judges in the pension levy. Few appear to believe that the pension levy would obviously contravene Article 35.5, though some weight must be accorded to the suggestion that it would, given the authority of the Attorney General and the esteem in which he is held.

Of course, any challenge requires a plaintiff. In practical terms and in the context of Ireland’s current economic and political environment, it would be surprising if a judge were willing to run the gauntlet of public opinion by litigating on this point.

If a referendum is to be held, could the Government adopt Deputy Shatter’s proposal? The proposed wording of his new Article 35.5 reads:

The remuneration of a judge shall not be reduced during his continuance in office save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration; in such circumstances any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary.

The highlighted words and phrases raise immediate questions. What constitutes a serious threat? What, exactly, is the State’s economy and, if it is something other than the State’s finances, how is a reduction in judges’ pay necessary to address that threat? What is a compelling need?

In addition, the wording imposes requirements of necessity and is cumulative: it must be necessary to address a serious threat in the economy and it must be necessary to stabilise the State’s finances in order for judges’ pay to be cut. Granted, it may be unlikely that you would have one without the other, but the wording is less than solid. (To be fair, any opposition PMB is a political, rather than legal, proposal.)

It would be better to have a simpler, clearer statement that could be fleshed out by means of primary legislation. It could be provided that the remuneration of any individual judge shall not be reduced during his continuance in office, save where such reduction applies to each judge of the same court or to State employees in general. This would avoid unnecessarily restricting Article 35.5 should different circumstances arise in the future which do not relate to the economic sky falling in but which equally require public sector pay adjustments.

The Government has arguably created an unnecessary and damaging controversy. Discussion of Article 35.5 is couched in much hand-wringing of the need to protect the independence and authority of the judiciary: exactly what this controversy has failed to do. Had the levy been imposed, judges would doubtless have been as disgruntled as others who have had their pay cut in recent months, but by creating the voluntary scheme they have invited public opprobrium.

In political terms, the correct course of action would have been to include judges in the pension levy and other financial adjustments and make no particular comment in relation to the matter. This is not to suggest that the Government ignore the Constitution; given that the constitutional position of the levy as respects judges is debatable, there is an argument for this course of action and to do so would not be flagrantly unconstitutional.

Instead, we have unnecessary debate on a niche area of expenditure which has been blown out of proportion, leading to calls for wasteful referenda to introduce constitutional amendments which may not be future-proof.

Refreshing news from the Scottish Government

Via Out-Law, the Scottish Government plans to reduce the amount of personal data it collects.

[The Government] has proposed a set of Identity Management and Privacy Principles with which public bodies will have to comply. The principles move the Scottish Government away from the trend of building very large public databases of personal information.

“Organisations should avoid creating large centralised databases of personal information and store personal and transactional data separately,” said a statement outlining the plans. “People should only be asked for identity when necessary and they should be asked for as little information as possible.”

This chimes with the requirements of the Data Protection Directive, implemented in Ireland by the Data Protection Acts 1988 and 2003. Section 2(1)(c) requires that personal data is collected only for specified, explicit and legitimate purposes. This data cannot be further processed in a manner incompatible with that stated purpose and the data must be relevant and not excessive. Neither should it be kept longer than necessary.

The new Scottish approach is in marked contrast to the data-hungry attitude of most government agencies, including our own. For example, the PPS numbering system, originally intended only for the administration of social welfare payments and tax deductions, has balooned into a general purpose citizen ID number. In the UK there has, at least, been extensive debate about the merits of a scheme of national IDs but in Ireland a de facto national ID system is creeping in around the edges.

In addition to the provisions of the Data Protection Acts, the Social Welfare Acts and the PPS code of practice published by the Department of Welfare govern the PPS system. The most important provision of the Social Welfare Acts in this regard, and one which does not appear to be widely appreciated, is section 223(6), which states that it is an offence to use or request a PPS number from someone unless specifically entitled to do so (e.g. by being a State agency named in the Acts). Nevertheless, it is routinely sought by private sector entities and professionals without specific thought as to whether the number is required in the transaction. State agencies appear to be satisfied that they are entitled to seek PPS numbers if they are listed in the Social Welfare Acts, regardless of the implications of the Data Protection Acts.

The gradual extension of the PPS system allows for the collation of vast amounts of data by Irish government agencies. Irish politicians should adopt the Scottish approach and decide that a positive policy should be implemented which ensures that agencies request information only when it is both relevant and necessary.