The logo is final, the app store listing is written, and launch is six weeks away. The designer has asked whether you want the artwork "protected", a friend has mentioned trade marks, and you already paid to register a business name with ASIC, so surely the name is covered. This is the moment most app founders quietly decide whether their brand becomes an asset or just a picture, and the decision is rarely made with the full picture in front of them.
The three options, and the one that is not what founders think
You have three realistic paths, and only one of them is what most app founders assume they already have.
- Do nothing: Your logo and app name still attract some protection. Copyright protects the logo artwork itself from being copied, because a logo is an "artistic work" under s 10 of the Copyright Act 1968 (Cth), and the common law of passing off can stop a competitor trading on your reputation, since s 230 of the Trade Marks Act 1995 (Cth) preserves passing-off actions. But passing off only works if you can prove reputation, deception and damage, which is slow, uncertain and expensive.
- Register the logo as a trade mark: You file with IP Australia and, if accepted, get a registered mark with the statutory rights set out below.
- Register the logo plus a separate word mark: A third path that protects the logo as a whole and the app's name as text, which matters more than most founders realise.
Before weighing the factors, clear away the assumption this article's source article leans on: registering a business name with ASIC is not brand protection. ASIC's own guidance says a business name registration only stops another business registering an identical or nearly identical name, that it does not stop others using similar words, and that it does not protect you against claims that you are using someone else's trade mark. A business name is an administrative registration. A trade mark is intellectual property. They protect different things, and conflating them is the most expensive mistake in this area.
What to weigh before you file
Five factors separate a straightforward filing from a decision you will regret at launch.
What registration actually protects
Under s 17 of the Trade Marks Act 1995 (Cth), a trade mark is a sign used, or intended to be used, to distinguish your goods or services from anyone else's. "Sign" is broad: under s 6 it includes words, names, devices, shapes, colours, sounds and scents. Registration gives the owner the exclusive rights to use the mark, and to authorise others to use it, in relation to the goods or services for which it is registered, under s 20. Those rights apply right across Australia, which is more than an unregistered mark ever gives you.
The key limitation: a logo mark protects the logo as a whole, the combination of words, shape and styling. It does not give you rights over the words themselves. If a competitor puts your app's name in a completely different font and layout, a logo-only registration may not stop them. If the name matters, and for an app it usually does, file a plain word mark for it as well as the logo.
Two further limits are worth knowing before you pay. First, not every logo qualifies. Under s 41, a mark must be capable of distinguishing your goods or services, so a logo that is generic or purely descriptive will struggle at examination. Second, a trade mark and copyright protect different things. Your logo artwork has copyright protection automatically as an artistic work, but copyright stops someone copying the artwork itself; it does not stop a competitor designing a similar-looking sign from scratch. Only a trade mark stops use of a similar sign in the marketplace.
Timing: the filing date decides the race
Australia is, in practical terms, a first-to-file system for registered marks. Under s 44, a later application must be rejected if it is substantially identical with, or deceptively similar to, a mark already filed for similar goods or services, and the earlier mark's priority date wins. If a competitor files a similar logo before you do, your application can be refused even though you designed the logo first. There are escape routes, including opposition on the ground that the applicant is not the true owner under s 58 or proof of continuous prior use, but they are slow and expensive to run.
The practical numbers matter here. IP Australia says examination usually takes three to four months, and the minimum time between filing and registration is seven months. The counter-intuitive good news is that your rights date back to your filing date under s 72(1), so filing before launch means your protection exists from day one in the app store. File after a competitor's copy appears and you are already behind. And once your mark is accepted, it is advertised in the Australian Official Journal of Trade Marks for two months, during which anyone can oppose it under s 52.
If you are close to launch and still unsure whether the mark will pass examination, IP Australia's TM Headstart service gives you an indicative assessment from an examiner before you commit to the full application, which is a cheap way to test the water without losing your place in the queue. The Australian filing date also gives you a priority date you can build on if you later seek protection overseas, so a domestic filing now keeps future options open rather than closing them.
What you can do about a copycat
Registration converts a vague sense of unfairness into a defined legal cause of action. Under s 120, a person infringes a registered trade mark by using, as a trade mark, a sign substantially identical with or deceptively similar to your mark in relation to the goods or services for which it is registered. Your escalation path looks like this:
- Cease and desist letter: The first step is usually a letter identifying your registration, the infringing use and the deadline to stop. Registered owners write these from strength; unregistered owners have to threaten litigation without a registration to point to.
- Opposition: If a competitor files a similar application, you can oppose it within the two-month advertisement window under s 52, rather than waiting to sue.
- Court action: If the infringement continues, the Federal Court can grant an injunction, and at your option damages or an account of profits, plus additional damages for flagrancy, under s 126.
Without registration you are left with passing off, where you must prove your reputation, the deception and your damage. It is a longer, costlier road, and it is why enforcement is a registration-based game.
One qualification before you picture yourself in court: not every similar logo is an infringement. Someone who used an identical or deceptively similar mark continuously in trade before your registration date, or before you first used the mark, has a prior-use defence under s 124. The question of who used what first is often where enforcement disputes are actually won and lost, which is why the sensible first step is checking the facts, not firing off a letter.
The asset angle: ownership, licensing and investors
A registered trade mark is personal property under s 21, which makes it a real business asset rather than a design file. The differences show up when you try to deal with it. A registered mark can be assigned with or without the goodwill of the business under s 106, which is what lets you sell the mark, or grant a licence over it, on its own. An unregistered mark can generally only be transferred together with the business goodwill that goes with it, so a bare logo sale or licence is only practical once you are registered.
Ownership structure is where app founders trip up. If you file as an individual and later incorporate, the mark must be formally assigned to the company under s 106, and investors will want to see that the company actually owns the IP it is being valued on. There is also the designer problem: unless the design agreement assigns the copyright in the artwork to your business, the designer is usually the first owner of the copyright in the logo, which means the copyright and the trade mark can end up in different hands.
The costs, including the ones you do not see
The upfront cost is modest. A standard online application costs $250 per class of goods or services if you use the IP Australia picklist, and $400 per class without it; the TM Headstart pre-application service costs from $330 in total. Most apps need protection in at least one, and often more than one, of the 45 classes, so the total depends on how much of what the app does you choose to cover.
The ongoing obligations matter just as much:
- Renewal: Registration runs for 10 years from the filing date under s 72, and can be renewed for further 10-year periods, including within six months after expiry under s 79.
- Use it or lose it: A mark that goes unused for a continuous period of three years can be removed from the Register on application under s 92. Keep using the logo in trade, and keep records of that use.
- The invisible cost: The expensive option is not registering. Enforcing an unregistered mark means passing-off litigation, which is slower and costlier than infringement proceedings on a registered mark, and your protection is limited to wherever your reputation actually reaches.
How an Artificer Legal lawyer helps with the trade mark decision
A lawyer's value here is in the judgement calls the application form does not make for you. Before you file, we can run clearance searches to check your logo and name against existing marks so you do not discover a s 44 conflict after launch, assess whether the logo is distinctive enough to pass s 41, and pick the classes that actually cover what your app does. After filing, we can respond to examination reports, defend or run oppositions within the two-month window, and draft the assignment and licence documents that keep the mark and the copyright in the right entity. If infringement happens, we can prepare the cease and desist letter and, if needed, run the s 120 infringement claim. Bring us your logo and your app's name and we will tell you what is registrable, what it will cost, and what gaps remain.
The distinction that most app founders miss
The sharpest point in this decision is that a business name, a copyright and a trade mark are three different things protecting three different aspects of your brand. The ASIC registration protects your right to trade under a name, and nothing more. Copyright protects the artwork from being copied. Only a registered trade mark stops a competitor using a similar sign for similar goods or services. The founders who understand that before launch are the ones whose brands survive first contact with a copycat, because they filed first, filed in the right entity, and kept the logo in use.
On the numbers: registration gives you exclusive, nationwide rights in the logo for the goods and services you nominate, enforceable by injunction, damages or an account of profits. The first filing date sets priority, so file before launch, not after. The upfront cost is in the hundreds of dollars, not thousands, but the mark must be used and renewed every 10 years to keep it alive. Weigh those factors against the cost of enforcing an unregistered mark, and the decision usually makes itself.