Intellectual Property for Business in Australia: Trademark, Copyright and More
IP is an asset — but it needs active protection
A business’s assets are not only its equipment, stock or cash. The intangible things — your brand name, logo, product designs, software, business processes and know-how — also have real economic value and need to be protected.
Intellectual property (IP) in Australia is administered by IP Australia and protected under federal and state law. Some types of IP are protected automatically; others need to be actively registered.
Trademark
What a trademark is: A sign that distinguishes your goods or services from those of others — it can be a name, a logo, a distinctive colour, a sound or a shape.
Use alone is not enough: Simply using a name or logo does not automatically give you exclusive rights to it. Someone else could register the same or a similar trademark, and you would have to stop using yours.
Registering a trademark with IP Australia: A registered trademark gives you the exclusive right to use it in Australia within the classes of goods or services it is registered for. Before registering a name or logo, you should search IP Australia’s trademark database to check for conflicts.
Business name ≠ trademark: Registering a business name with ASIC does not protect that name from being used by others — it is only an administrative registration. A trademark is the real protective tool.
Copyright
Copyright is automatic: In Australia, copyright arises automatically when you create an original work — no registration is needed. This applies to text, images, graphic designs, music, software and many other kinds of work.
Who owns copyright: Usually the person who created the work. If an employee creates it in the course of their work, copyright usually belongs to the company. If a contractor (freelancer) creates it, copyright belongs to the contractor by default — not to you, even though you paid for it — unless there is a written agreement assigning it.
An important point in practice: Many businesses pay to have a logo, website or software designed, but have no clear contract about IP ownership. When they later want to use or modify it, they can run into legal problems with the creator. Always include an IP assignment clause in your contract with a designer or developer.
Patent
A patent protects an invention: If you develop a new method, product or process that is inventive, a patent lets you stop others from using it for a set period.
Active registration required: A patent must be applied for before the invention is disclosed to the public — disclosing it before registration can cause you to lose your patent rights.
Cost and time: The patent application process is expensive and time-consuming — it usually requires a patent attorney. It suits inventions with significant commercial value.
Design protection
The shape and appearance of a product can be protected with a registered design — protecting the visual form of the product (as distinct from a patent, which protects how it works).
Trade secrets and know-how
Not everything needs to be registered — some of the most valuable IP consists of trade secrets and operational know-how that is kept undisclosed. Protect it by:
- Including a non-disclosure agreement (NDA) and confidentiality clause in employment contracts
- Including an NDA in contracts with partners and suppliers
- Controlling who has access to which information
Domain names and social media handles
Domain names and social media account names are a practically important type of IP that is often overlooked. Register the right domain name (including .com.au) and your official account names early — before someone else registers them first.
When you need an IP attorney
You need advice from an IP attorney when: you are registering a trademark or patent, you have a dispute over IP infringement, you are drafting an important NDA or IP assignment, or you are buying or selling a business with significant IP.