Guides · Australian Business Legal Guide · Chapter 4 of 7
Intellectual property and brand
Last reviewed 14 August 2026
Trade marks, copyright, confidential information and the difference between owning a business name and owning a brand.
In short
Registering a business name or a company name in Australia gives you no exclusive rights to that name. A registered trade mark does. Copyright arises automatically but does not automatically belong to the business that paid for the work.
Intellectual property is usually the most valuable thing a services business owns and the least likely thing to be documented. Two misunderstandings account for most of the damage: that a business name is a brand, and that paying for something means owning it.
The main categories
- Trade marks. Signs that distinguish your goods or services. Registration through IP Australia grants an exclusive right to use the mark for the registered classes across Australia.
- Copyright. Arises automatically in original literary, artistic, musical and dramatic works, including software, drawings and written material. No registration exists or is required in Australia.
- Confidential information and trade secrets. Protected by obligations of confidence rather than registration — which is why NDAs, employment terms and access controls matter.
- Registered designs. Protect the visual appearance of a product. Critically, protection generally requires filing before public disclosure.
- Patents. Protect inventions; expensive and slow, but the only real protection for a technical innovation. Again, disclose after filing, not before.
Business name, company name, domain name, trade mark
These are four separate registers doing four different jobs. A business name registered with ASIC merely records who is trading under a name. It does not stop anyone else using it, and it will not save you if someone else holds a registered trade mark for the same name in your class. Clearing a name properly means checking the trade marks register, the business and company registers, and common law use — before you invest in signage, packaging and a domain.
Our trade marks page covers registration and opposition in more detail.
Who owns what your business paid for
Copyright in work created by an employee in the course of employment generally belongs to the employer. Copyright in work created by a contractor — a designer, a developer, a photographer, an agency — generally belongs to the contractor, even though you paid for it, unless there is a written assignment. Most disputes about a logo, a codebase or a website arise from exactly this gap.
The fix is procedural, not complicated: every contractor engagement includes a present assignment of IP on creation, a consent regarding moral rights, and a licence back only where the contractor genuinely needs one (for example, to reuse generic components in their tooling).
Confidentiality that works
An NDA is useful at the start of a discussion, but it only ever gives you a contractual remedy after the fact. Pair it with practical controls — limited distribution, marked documents, access revoked on exit — and be realistic about what is genuinely confidential. Overbroad confidentiality obligations are harder to enforce, not easier. See our NDA guide.
Enforcement in practice
Most infringement is resolved commercially: a letter of demand, a takedown request to a platform or registrar, an undertaking, and sometimes a coexistence agreement. Litigation is a last resort and, for a small business, rarely the right first move. What determines the strength of your position is almost always what you registered and what you documented before the problem arose.
Where this fits
We handle clearance searches, trade mark filing and IP assignment documentation under our intellectual property practice, on fixed fees.
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