You have a name, a logo, a website and a product ready to launch. Intellectual property is probably the last thing on your mind, and that is understandable, because nothing has gone wrong yet. The trouble is that the three IP problems that most often derail a new business all announce themselves after the money has been spent: a brand that was never registered, work copied online, and a name someone else already owns. Each of them is easier to deal with before it happens.
What "protecting your IP" actually involves
Intellectual property is not one right. It is a collection of different rights, each covering a different asset, and the first mistake entrepreneurs make is treating them as interchangeable. The second mistake is assuming that everything is protected automatically. Some rights arrive by themselves. Most of the ones that matter for your brand only exist because someone applied for them and paid the fees.
- Trade marks: a registered trade mark gives you the exclusive right to use the mark, and to authorise others to use it, for the goods or services it is registered for (s 20 of the Trade Marks Act 1995 (Cth)). It is the right that stops another trader adopting your brand, or something confusingly close to it. Registration is not automatic.
- Copyright: protection is automatic. Under s 32 of the Copyright Act 1968 (Cth), copyright subsists in original literary, dramatic, musical and artistic works as soon as they are expressed in a material form, and there is no registration system in Australia. Your website copy, product photos, marketing material and software are protected from the moment they are created. What copyright does not protect is your business name, your slogan or your underlying ideas. It protects the way you expressed them, not the ideas themselves.
- Patents: a patent gives its owner the exclusive right to exploit an invention, and to authorise others to do so, for the term of the patent (s 13 of the Patents Act 1990 (Cth)). A standard patent runs for 20 years (s 67). In return, the invention must be fully described in the specification, which is published. Patents are for genuinely new and inventive products and processes, and they are among the slowest and most expensive rights to obtain.
- Designs: a registered design protects the overall appearance of a product as it results from its visual features, which include shape, configuration, pattern and ornamentation (ss 5 and 7 of the Designs Act 2003 (Cth)). If the look of your product is part of its appeal, this is how you stop a competitor copying that look.
- Confidential information: your recipes, customer lists, pricing models and unreleased plans are protected as trade secrets only while they stay secret. No registration is involved. Confidentiality obligations in agreements with staff, contractors and advisers are what protect them.
The pattern to notice is the line between automatic and registered rights. Copyright arrives by itself. Trade marks, patents and designs exist only because someone applied for them. Work out which bucket each of your assets falls into before you launch, because the bucket decides what you can enforce later.
Someone is using your work online. Now what?
Say a competitor lifts the product photos from your website and uses them on their own online store. Your first problem is noticing, and the internet makes copying easy to miss. Your second problem is proof. Copyright protects against copying, not against independent creation, so you need to be able to show that the other party had access to your work and reproduced it. That is why the strongest evidence you can keep is a dated record of when your own material first appeared online.
If you do find your work being used without permission, the first step is a written request to take it down. Reproducing a work without the owner's licence infringes copyright, because it is doing an act comprised in the copyright, which s 36 of the Copyright Act 1968 (Cth) prohibits. Most operators will remove the material when the request is clear and comes from someone who plainly owns the work. Before you send anything, save dated screenshots of the infringing pages, note the URL, and identify who actually operates the site, because that determines who you are dealing with.
If the material stays up, the remedies in s 115 of the Copyright Act 1968 (Cth) are worth knowing before you decide what to do. A court can grant an injunction requiring removal, and either damages or an account of the profits the infringer made from your work. Additional damages are available where the infringement is flagrant, for example where the copying was deliberate and the infringer ignored your requests. One nuance surprises people: if the infringer genuinely did not know, and had no reason to suspect, that they were infringing, they are not liable for damages, but they still have to hand over their profits (s 115(3)). Even a genuine mistake does not let someone keep the money they made from your work.
Enforcement is still a commercial decision. Court proceedings are expensive and slow, and you should weigh the cost against what you are likely to recover and whether the other party is worth suing at all. A competitor in the same market, with money to lose, is a different proposition from an anonymous site you cannot identify. In most cases a well-drafted letter from a lawyer, setting out the infringement and the remedies available, resolves the matter without a court seeing it.
Your trade mark is already taken. What are your options?
There is a particular moment every entrepreneur dreads: you settle on a name, print the packaging, buy the domain, and then discover that a similar mark is already registered. The cheapest way to deal with this problem is to find out about it before you spend the money. IP Australia's trade mark search is free, and it should be one of the first things you do with any shortlisted name. A search is not the same as legal advice on whether a conflict exists, but it tells you what you are up against.
Understanding what actually creates a conflict helps you read the search results. Under s 44 of the Trade Marks Act 1995 (Cth), an application must be rejected if the mark is substantially identical with, or deceptively similar to, an earlier mark, and the goods or services concerned are similar or closely related. Two points here are widely misunderstood. First, trade mark classes are a starting point, not the test: goods in different classes can still be similar, and goods in the same class can be completely unrelated. "It is in a different class, so we are fine" is not a safe assumption. Second, if the earlier mark is well known in Australia, using a similar sign in relation to completely unrelated goods or services can still infringe (s 120(3)).
If you do find a conflicting registration, your options, roughly in order of cost, are:
- Modify the mark: changing the name or logo now is cheaper than fighting for it later.
- Proceed anyway, with advice: if the goods or services are not similar, or the marks are not deceptively similar, registration may still be possible.
- Rely on your own prior use: if you, or your predecessor in title, have continuously used the mark since before the priority date of the earlier mark, the Registrar cannot reject your application on the strength of that earlier mark (s 44(4)).
- Seek removal for non-use: if the earlier mark has been registered for a continuous three-year period during which it was not used in good faith in Australia, anyone can apply to have it removed from the Register (s 92(4)(b) of the Trade Marks Act 1995 (Cth)). The same applies where the owner had no good-faith intention to use it when they filed (s 92(4)(a)). Removal is not automatic: you apply, the owner can oppose, and the outcome turns on evidence.
- Run the prior-use defence if you are sued: if you have continuously used your mark in the course of trade since before the date of registration of the earlier mark, or before the owner first used it, you have a defence to infringement (s 124).
The lesson is to file early, before you commit to packaging, signage and domains. Registration is territorial, so if you plan to sell overseas, factor in the countries that matter to you. The cost of filing is small next to the cost of rebranding, and even an application that hits an obstacle is useful information.
How an IP lawyer at Artificer Legal helps
Much of what is in this article is groundwork you can do yourself, but several points in the process are genuine judgement calls that a lawyer should make with you:
- Assessing conflict risk: whether two marks are deceptively similar, and whether goods or services are "similar" in the statutory sense, is decided case by case on evidence. A clearance opinion before you file, or before you adopt a name, is much cheaper than abandoning a brand later.
- Drafting the enforcement letter: a takedown or cease and desist letter that sets out the infringement, the rights involved and the remedies available is more likely to get results than an informal email, and it preserves your position if the matter ends up in court.
- Getting the ownership documents right: copyright in work an employee creates in the course of their employment belongs to the employer (s 35(6) of the Copyright Act 1968 (Cth)). Work a contractor creates belongs to the contractor unless the agreement assigns it to you (s 35(2)). Your founder agreements, contractor agreements and confidentiality deeds need to deal with both questions, and often they do not.
- Running the formal processes: non-use removal applications, oppositions and infringement proceedings are technical and deadline driven. A mistake in process can cost you the registration you are trying to protect.
An IP lawyer at Artificer Legal can take you through these steps, starting with a clearance search and a short conversation about which of your assets are actually at risk. It is cheaper to have that conversation before you file than after a letter of demand arrives.
Why your business name is not protected the way your photos are
The most misunderstood line in Australian IP law is the one between automatic and registered rights. The photos on your website and the copy you wrote are protected from the moment you create them, with no paperwork and no fees. Your business name, your logo and the look of your product are not. They are protected only because you registered them, and until you do, someone else can register them first. The entrepreneur who assumes otherwise gets the worst possible surprise: the day a competitor appears with a confusingly similar name and an earlier registration, the law is on the competitor's side until the registration is challenged.
To keep that from being you: map your assets to the right IP bucket before launch, register your trade mark and design before you invest in branding and packaging, search before you file, treat a takedown demand as the first step of enforcement rather than the last, and get a lawyer involved at the decision points where a wrong guess is expensive. None of this requires a law degree. It requires doing the IP work in the same order as everything else, before launch rather than after the problem arrives.