You have just finished the prototype, or settled on the name you will launch under, and someone has asked whether it is protected. The question matters because protection is only available if you act at the right time. An invention disclosed too early can lose its novelty. A brand left unregistered can be claimed by someone who files first. Working out whether you need a patent, a trade mark or both is one of the first real IP decisions an Australian business faces, and the answer drives what you file, what you pay and what you keep secret.
The two rights protect different things. A patent protects an invention: a device, method, process, system or substance, which is to say the way something works or is made. A trade mark protects a sign used in trade to distinguish your goods or services from someone else's, which is to say the way customers recognise you. If your value sits in how your product performs, you are looking at a patent question. If it sits in the name, logo or overall look of your brand, you are looking at a trade mark question.
The real question is rarely "patent or trade mark?" in the abstract. It is what you have actually created and what you need to stop other people doing. Two points frame the choice. First, one option you may have heard of is no longer available: innovation patents were phased out, and no new innovation patent applications can be filed in Australia since 26 August 2021, although patents granted before then continue for their term. Second, design registration and copyright sit alongside patents and trade marks but protect different things again: the visual appearance of a product, and original creative works. They are complements, not alternatives, and they rarely change which of the two main rights you need.
What to weigh up before you decide
The factors below are the ones that usually decide the question for a small or medium business. Run through them in order, because the first factor rules most options in or out.
What you are actually protecting
Start with the asset itself. A standard patent protects the invention: the way a product works or is made. A trade mark protects the sign that identifies your goods or services, such as a word, logo, slogan, shape or colour, for the particular goods or services you nominate in your application. The two are not interchangeable, and the choice between them usually resolves itself the moment you name the asset.
- Option A, a patent: choose this when the value is in how something works. A new mechanism, a faster process, a formulation, or software with a technical effect. The patent gives you the exclusive right to stop others making, using, selling or importing the invention in Australia without permission.
- Option B, a trade mark: choose this when the value is in how customers identify you. The name, logo or tagline. Registration gives you the exclusive right to use the mark for the nominated goods or services and to stop others using a confusingly similar sign.
Two things that look like protection are not. A name or logo cannot be patented: patent law protects inventions, not branding. And registering a business name with ASIC is an administrative requirement that gives you no ownership or exclusivity over the name, so it does not replace a trade mark. Without registration you are not entirely without recourse: passing off and the misleading or deceptive conduct prohibition in s 18 of the Australian Consumer Law (the ACL, which sits in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) can support a claim, but they are harder and more expensive to run than enforcing a registered right.
Whether your asset can actually be registered
Both rights are examined before registration, and the tests are different. An invention is only patentable if it is a manner of manufacture, new when compared with everything already publicly known, involves an inventive step and is useful. These requirements sit in s 18(1) of the Patents Act 1990 (Cth), and they are the reason a well-run search and a carefully drafted specification matter: an invention that is already known, or an obvious variation of it, will not be granted. A trade mark must be a sign that can distinguish your goods or services, and IP Australia will reject applications that conflict with an earlier mark or that are not distinctive enough for the classes applied for. A descriptive name such as "Fresh Bread" for a bakery will struggle where an invented word will not, which is why clearance searching before you commit to a name pays for itself.
Cost, time and effort
The cost gap between the two rights is substantial, and it should shape the order in which you act.
- Patents: most of the cost sits in the specialist work. Searches, a specification drafted by a registered patent attorney, examination, and fees to maintain the patent during its 20-year term. This is a process measured in years rather than months, and the combination of official fees and attorney costs for a granted Australian patent runs well into five figures.
- Trade marks: application fees start at $250 per class with IP Australia, and registration typically takes at least seven months. Registration lasts 10 years from filing and can be renewed for further 10-year periods under s 72 of the Trade Marks Act 1995 (Cth). For most small businesses the filing process is manageable with professional guidance rather than a specialist attorney.
The practical consequence is that a trade mark is usually the cheaper right, which is why most businesses should secure their brand early even when a patent is also on the table.
Timing, and the two 12-month windows
Timing is the factor that most often destroys value, because both rights have clocks. For an invention, public disclosure before filing can make the invention part of the prior art and destroy novelty. Australia does provide a grace period: certain disclosures made by or with the consent of the applicant can be disregarded if a complete application is filed within 12 months, under s 24 of the Patents Act 1990 (Cth). But the grace period does not exist in most overseas countries, so treating it as a safety net is dangerous. The safer path is to keep the invention confidential and file a provisional application first. The provisional application establishes a priority date and gives you 12 months to file the complete application under s 38 of the Patents Act 1990 (Cth).
For a brand, the risk is someone else getting there first. Trade mark rights in Australia are awarded to the first to file, so the practical rule is to register before you launch, or at least before the name starts building goodwill. Your rights also depend on what you do after registration: renew the mark every 10 years and keep using it for the goods or services you claimed, because a mark that is not genuinely used and maintained becomes harder to enforce.
Where you will trade and how you will commercialise
Patents and trade marks are territorial. An Australian registration protects you in Australia only, so if exporting, selling online overseas or expanding is part of the plan, factor foreign filings in early. For inventions the international route is the Patent Cooperation Treaty, which is built around filing within 12 months of your priority date. For trade marks it is the Madrid system, which lets you extend a single Australian application to a number of countries. Both routes run on deadlines that are much easier to meet while the Australian application is fresh.
Think also about what the rights are for. Registered rights underpin licensing, investment and a future sale. A business that owns its trade mark and patents outright, with clean records of assignment, is easier to value and transact than one relying on unregistered goodwill. If raising capital or selling is on the horizon, the strength and ownership of the IP will be examined, which is where the supporting contracts come in.
How an Artificer Legal IP lawyer helps you choose
Deciding between a patent and a trade mark, or structuring both, is a judgement call about your assets and your plans, and it is the kind of decision where a short consultation changes the outcome. An Artificer Legal IP lawyer would start by mapping what you have: the invention, the brand elements, the product's appearance, and the creative works around it. From there we test which rights each asset can support. On the trade mark side that means clearance searches across the register and the market, choosing classes that match the goods or services you actually trade in and plan to trade in, and an application strategy that reduces the risk of rejection or opposition. On the patent side it means deciding when a registered patent attorney should be brought in, structuring the provisional filing sequence, and making sure confidentiality is protected in the meantime.
Artificer Legal also handles the layer that registrations do not cover. NDAs for conversations with partners, suppliers and investors before filing. IP assignment clauses so work created by contractors, agencies and employees belongs to the business rather than to the creator by default. Ownership and confidentiality provisions in employment agreements, and IP clauses in founders' and shareholders' arrangements. If a dispute does arise, whether someone is trading under a mark confusingly similar to yours or a competitor is challenging your patent, we assess the claim, the defences and the cost of running it before you commit to a fight.
The clock starts when you disclose
If there is one decision to get right, it is timing. A promising invention disclosed to the wrong person before filing can become unpatentable. A brand left unregistered while it builds value can be taken by a later filer, leaving you to rebrand or buy the name back. Both outcomes are expensive to fix, and both are avoidable: file a provisional application, or at least keep the invention confidential, and register the trade mark before you launch. The working rule for most Australian businesses is to take advice before either clock starts, because once the information is out there, or the name is in use, the position can only get harder.
The rights themselves are straightforward once separated. Patents protect how something works, last up to 20 years if maintained, and require the invention to be new, inventive and useful. Trade marks protect the signs that distinguish your goods or services, are renewable every 10 years and can last indefinitely. Design registration protects a product's appearance for up to 10 years under s 46 of the Designs Act 2003 (Cth), and copyright protects original works automatically, with no registration system. Business name registration gives you none of these protections. A lawyer's role is to match the right rights to your assets, manage the clocks, and put the contracts in place that keep ownership clean.