Intellectual Property

Intellectual property (IP) refers to creations of the mind that the law recognises as belonging to their creator - or to whoever the creator has assigned them to. For a small business, IP can include your brand name and logo, the software you build, the content on your website, a unique product design, or a proprietary process that gives you a competitive edge.

Many founders treat IP as something to worry about later. That is a mistake. Your IP is often the most valuable asset in the business, and failing to protect it early can mean losing rights you assumed you had. Worse, it can leave you open to claims from competitors, former contractors, or co-founders who argue the IP belongs to them.

Australia has a well-developed IP framework administered primarily by IP Australia, the federal government agency responsible for trade marks, patents, and designs. Copyright, by contrast, arises automatically under the Copyright Act 1968 (Cth) and does not require registration. This chapter walks through each type of IP, explains how protection works in practice, and highlights the ownership traps that catch small businesses most often.

A trade mark is a sign used to distinguish the goods or services of one business from another. It can be a word, phrase, letter, number, logo, shape, colour, sound, scent, or a combination of these. Registering a trade mark gives you the exclusive legal right to use, license, or sell it in Australia for the goods and services covered by the registration.

What Can Be Trade Marked?

To be registrable under the Trade Marks Act 1995(Cth), a mark must be capable of distinguishing your goods or services. Marks that are purely descriptive (like "Fresh Bread" for a bakery) or too similar to an existing registration in the same class will be refused. Before filing, search the Australian Trade Marks Search database to check for conflicts.

Classes and Costs

Trade marks are registered by class - there are 45 classes covering different categories of goods and services. You need to register in every class relevant to your business. Filing online through IP Australia's TM Headstart service costs approximately $250 per class. The full registration process typically takes 7 to 8 months, including an examination period and a two-month opposition window where third parties can challenge your application.

Common Law vs Registered Trade Marks

You gain some rights simply by using a brand in trade (common law trade mark rights), but these are limited to the geographic area and industry where you have built reputation. A registered trade mark gives you nationwide, exclusive rightsfrom the filing date, a much stronger position in any dispute, and the ability to use the ® symbol. For most businesses, registration is worth the investment.

A patent protects a new invention - a device, substance, method, or process that is novel, involves an inventive step, and is useful. In Australia, patents are governed by the Patents Act 1990 (Cth) and administered by IP Australia.

Standard Patents

A standard patent lasts for 20 years from the filing date (or 25 years for pharmaceutical substances). It provides strong protection but requires a rigorous examination process to confirm novelty and inventive step. The application process can take two to four years, and professional patent attorney fees typically run between $5,000 and $15,000 or more depending on complexity.

Provisional Applications

A provisional patent application lets you establish a priority date at a lower cost while you refine your invention or seek funding. It gives you 12 months to file a complete application. A provisional application does not itself become a granted patent - think of it as a placeholder that secures your spot in the queue.

International Protection

If you plan to commercialise your invention overseas, the Patent Cooperation Treaty (PCT) allows you to file a single international application that preserves your right to seek patent protection in over 150 countries. You then have 30 or 31 months (depending on the country) to enter the national phase in each jurisdiction. This buys time, but each national filing has its own fees and examination requirements.

Copyright protects original works of authorship the moment they are recorded in a material form - you do not need to register, publish, or mark the work with © for protection to apply (though marking it is still good practice). In Australia, copyright is governed by the Copyright Act 1968 (Cth).

What Copyright Covers

Copyright applies to literary works (including software code and website copy), artistic works (logos, photographs, illustrations), musical and dramatic works, films, sound recordings, and broadcasts. It does not protect ideas, facts, names, or slogans - for those, you need a trade mark or patent.

Duration

For most works, copyright lasts for the life of the creator plus 70 years. For works owned by a corporation (where the author is not identified), it generally lasts 70 years from first publication. Sound recordings and films also last 70 years from publication.

Moral Rights

Australian law gives individual creators three moral rights: the right of attribution (to be identified as the author), the right against false attribution, and the right of integrity (to object to derogatory treatment of the work). Moral rights cannot be assigned or transferred - they always belong to the individual creator. However, they can be consented to in writing, and most well-drafted contractor agreements include a moral rights consent clause.

Copyright in Business

For a typical small business, copyright is relevant across your website content, marketing materials, product photography, software code, training documents, and any original creative output. The key question is not whether the work is protected - it almost certainly is - but who owns it. We cover this in the IP ownership section below.

A registered design protects the visual appearance of a product - specifically its shape, configuration, pattern, or ornamentation. It does not protect how a product works (that is a patent) or what it is called (that is a trade mark). Design registration is governed by the Designs Act 2003 (Cth).

Registration lasts for an initial period of 5 years, renewable for a further 5 years to a maximum of 10 years total. To be registrable, the design must be new and distinctive when compared to existing designs. Filing costs approximately $250 online for a single design.

Design registration is particularly relevant for consumer products, furniture, packaging, and any physical goods where the look of the product is a competitive differentiator. If you plan to manufacture overseas, register your design before sharing detailed drawings or prototypes with suppliers.

Not all IP can (or should) be registered. Trade secrets - proprietary formulas, algorithms, customer lists, pricing strategies, and know-how - are protected through confidentiality rather than registration. In Australia, trade secrets are protected under the common law of confidence and, more practically, through contractual mechanisms.

Practical Protection Strategies

• Non-disclosure agreements (NDAs) - use them before sharing sensitive information with potential partners, investors, suppliers, or employees. An NDA creates a binding obligation to keep specified information confidential.
• Access controls - limit who in your organisation can access sensitive information. Use role-based permissions, password protection, and need-to-know policies.
• Employment and contractor agreements - include confidentiality clauses that survive the end of the relationship. Specify what information is considered confidential and what happens if it is disclosed.
• Mark documents clearly- label confidential documents as "Confidential" or "Proprietary." While labelling alone does not create legal protection, it supports your position if a dispute arises.

The advantage of trade secrets over patents is that protection can last indefinitely, costs nothing to register, and does not require public disclosure. The disadvantage is that once a secret is out, it is gone - there is no registered right to fall back on.

Your online presence is an extension of your brand, and it needs proactive protection.

Domain Names

Registering your business name as a domain does not give you trade mark rights, and having a trade mark does not automatically entitle you to a matching domain. Secure your primary domain (especially .com.au and .com) early, before someone else does. If a domain squatter is holding a domain that matches your registered trade mark, you can pursue a complaint through the .au Dispute Resolution Policy (auDRP) or WIPO's UDRP process.

Social Media Handles

Register your brand name on major platforms as soon as you settle on it - even if you do not plan to use every platform immediately. Handles are allocated on a first-come, first-served basis and can be difficult to reclaim. Most major platforms have trade mark infringement reporting mechanisms if someone is using your registered mark to mislead consumers.

Monitoring Infringement

Set up Google Alerts for your brand name and key product names. Periodically search the IP Australia trade marks database for new applications that are similar to yours. If you find infringement, act promptly - a delay can weaken your position. A cease and desist letter from a lawyer is usually the first step before escalating to formal opposition or court proceedings.

This is where most small businesses get caught out. The default rules around IP ownership in Australia are not always intuitive, and they differ depending on whether the creator is an employee or a contractor.

IP Created by Employees

Under Australian law, IP created by an employee in the course of their employmentgenerally belongs to the employer. This includes copyright, patentable inventions, and designs - provided the work was part of their duties. However, if an employee creates something outside their normal duties or in their own time using their own resources, they may retain ownership. Clear employment agreements should specify the scope of the employer's IP ownership.

IP Created by Contractors

This is the big one. Under Australian law, an independent contractor who creates IP for your business owns that IP by default - even if you paid for the work. This applies to freelance developers who build your app, designers who create your logo, copywriters who write your website, and photographers who shoot your products. Without a written agreement assigning IP to you, the contractor retains ownership and you receive, at best, an implied licence to use the work for its intended purpose.

IP Assignment Agreements

An IP assignment agreement formally transfers ownership of intellectual property from the creator to your business. It should specify exactly what IP is being assigned, confirm it covers all current and future work under the engagement, include a moral rights consent (for copyright works), and state the consideration (payment) for the assignment. This is distinct from a licence, which only grants permission to use - it does not transfer ownership.

For founders with co-founders, your shareholders' agreement or partnership agreement should also address who owns any IP created before the company was formed and how new IP is assigned to the company. Disputes over pre-existing IP are common when co-founder relationships break down.