Your startup has reached the point where the question stops being theoretical. You have a brand name, a logo, a product, some code and a pitch deck, and someone has asked whether your intellectual property is protected. It might be an investor working through due diligence, a customer asking to see your trade mark certificate, or a competitor launching something uncomfortably close to your name. Whatever the trigger, you now need a defensible answer, and the honest position for most early stage startups is that some assets deserve registration and others do not.
The options are not as simple as protect everything or protect nothing. Australia offers four main ways to hold intellectual property: registered rights such as trade marks, patents and designs; automatic rights such as copyright; and secrecy, where an asset is protected because nobody else can lawfully access it. The real question is narrower. Which of your specific assets justify the cost and effort of registration now, and which are better left to automatic protection or kept confidential until they are proven?
Two assumptions commonly fail founders here. First, registering a business name with ASIC does not give you any trade mark rights; it only records the name you trade under, and it does not stop another business from using a similar name. Second, there is no copyright register in Australia and no register for trade secrets, so some of your most valuable assets will never appear on any government register. An IP strategy is therefore a mix of things you register, things you record, and things you simply keep secret.
What to weigh before you spend
What you actually own
Start by matching each asset to the protection it is capable of receiving. A trade mark is a sign used, or intended to be used, to distinguish your goods or services from someone else's, under s 17 of the Trade Marks Act 1995 (Cth). It can be a word, logo, phrase, colour, sound, smell or aspect of packaging. Copyright, under the Copyright Act 1968 (Cth), protects the original expression of an idea in material form, not the idea itself. A patent, under the Patents Act 1990 (Cth), protects an invention. And a trade secret is simply information that retains value because it stays confidential.
- Trade mark: your name, logo and slogan, registered with IP Australia for the classes of goods and services you trade in.
- Copyright: website content, software source code, written material, images and video, protected automatically from the moment the work is created and recorded.
- Patent: a new product, process or method, granted after examination for novelty and inventive step.
- Trade secret: formulas, algorithms, customer lists and unpublished know-how, protected only by keeping them secret.
- Design: the visual appearance of a product, if that appearance is part of the product's appeal.
Most startups end up with a portfolio of two or three of these, not all of them. A software startup will almost always rely on copyright in its code and secrecy around its algorithms, and will usually add a trade mark for its name. A hardware startup will add a patent and possibly a design.
Timing: the race and the disclosure trap
Timing decides whether protection is even available, and it is where startups lose the most value. Trade marks in Australia go to the first person to file, not the first to use the name. If someone else files first, your options shrink to opposition or infringement proceedings, which are far more expensive than filing early. Under s 72(3) of the Trade Marks Act 1995 (Cth), a registration lasts 10 years from the filing date, and s 77 allows renewal in 10-year blocks indefinitely.
Patents have a harder deadline. Under s 7 of the Patents Act 1990 (Cth), an invention is only novel if it has not been made publicly available. A single public demonstration, a launch post, or a detailed pitch to a stranger can destroy the novelty of an invention before you file, and once that happens a patent is no longer available. The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) also raised the standard for the inventive step test, so an invention must not be obvious to a person skilled in the relevant art.
Copyright and trade secrets have no filing deadline. Copyright arises automatically when an original work is created in material form by a qualified person or first published in Australia under s 32 of the Copyright Act 1968 (Cth), and it generally lasts 70 years after the author's death under s 33. A trade secret survives only while the information stays secret.
- Name or logo: search and file before you commit to branding spend.
- Invention: file before you disclose it to anyone outside a confidentiality arrangement.
- Code or content: nothing to file, but record creation dates and ownership so you can prove originality later.
- Secret know-how: secrecy must start on day one, including with your own employees.
What each option costs
Costs range from nothing to tens of thousands of dollars, and they are the main reason to be selective. A standard trade mark application with IP Australia costs a minimum of $250 per class of goods and services using the picklist, or $400 per class without it, and IP Australia advises that registration takes at least seven months from filing. The pre-application TM Headstart service starts at $330. Copyright costs nothing to obtain. A patent is the most expensive registered right, because in addition to official fees you will usually pay a patent attorney to draft the specification, and examination can take years. A trade secret costs nothing to register because there is nothing to register, but it carries ongoing costs in confidentiality agreements, access controls and discipline.
- Trade mark: from $250 per class at IP Australia, plus renewal every 10 years. Cheap enough that most startups should file once the name is chosen.
- Copyright: free and automatic, but only valuable if you can prove ownership and originality.
- Patent: the largest spend, justified only when the invention is central to the business and the market is real.
- Trade secret: no official fees, but real discipline: non-disclosure agreements, restricted access and records of who knew what.
Knowing when to hold back matters as much as knowing when to spend. If the market is untested and the invention has not been validated, a patent application may be money spent on a solution nobody wants. Keeping the invention secret until investment or sales validate it is often the better call, because unlike a patent, which expires 20 years after filing under s 67 of the Patents Act 1990 (Cth), a trade secret does not expire while it stays confidential.
What investors and buyers will check
Investors and acquirers treat IP as part of the asset base they are buying into. IP Australia puts it directly: IP rights become an intangible business asset that enhances the value of a business and makes it more attractive to investors. In practice, due diligence asks three things: what IP does the business own, is the ownership documented, and is any of it exposed to infringement claims? A startup with a registered trade mark and clean ownership records answers those questions cheaply. A startup that has traded under a name for two years without a trade mark, and cannot point to a single assignment of the code its contractors wrote, will spend the due diligence period trying to fix the record instead of negotiating the valuation. Registered rights also open the door to licensing income, which investors value as revenue that does not require serving more customers.
Who owns the IP, and can you prove it
This is the factor founders forget, because the answer is not always the company. Under s 35(6) of the Copyright Act 1968 (Cth), an employer owns the copyright in works an employee creates in the course of employment, unless an agreement says otherwise. Under s 15 of the Patents Act 1990 (Cth), a patent may be granted to the inventor or to a person entitled to have it assigned, which for employees usually means the employer under the terms of the employment contract. Neither rule protects you with contractors, co-founders or consultants. A contractor who builds your software or designs your logo owns the copyright in that work by default, because the general rule in s 35(2) of the Copyright Act 1968 (Cth) is that the author owns the copyright, and the employer exception only covers employees. The fix is a written IP assignment in the engagement agreement that transfers rights to the company before the work starts, and for co-founders an IP assignment deed that sweeps pre-incorporation work into the company. This is the cheapest protection available, and it is the one most startups never put in place.
Who signs a confidentiality agreement
Secrecy only works if the people who see the information are bound. Employees and contractors should sign confidentiality agreements as part of their engagement, and the agreement should survive the end of the working relationship. With investors and potential partners the calculus is different. Early stage investors see a great many ideas and are usually not in the business of taking them, and some will refuse to sign a non-disclosure agreement or will only sign a mutual one, because they do not want to be prevented from later funding a startup with a similar idea. Treat the agreement as a matter for negotiation rather than a precondition: push for it where the information is genuinely proprietary, disclose only what the investor needs to see and only in stages, and keep the truly core information out of the pitch deck entirely.
How an Artificer Legal lawyer helps you decide and act
Working through these factors with a lawyer is how a startup turns "should we protect our IP" into a plan. An Artificer Legal lawyer will start by mapping the assets you actually have, then stress-test the assumptions that drive the decision: whether the name is clear to register, whether the invention has been disclosed anywhere, whether the market justifies the cost of a patent, and whether the ownership record can survive scrutiny. Where the choice is registration, we run the clearance checks and coordinate the filing, and where the invention warrants a patent we work alongside a patent attorney on strategy. Where the choice is secrecy or automatic protection, we draft the confidentiality agreements, the IP assignment clauses for contractors and co-founders, and the records that prove chain of title. The point of the exercise is that you make the call on information rather than hope, and that the documents you need are in place before an investor asks for them.
Registering nothing while disclosing everything
The mistake that costs startups the most is not failing to register; it is disclosing before deciding. A name used for a year without a trade mark, an invention pitched to a potential partner before filing, or code built by a contractor with no assignment: each of these is a decision made by default, and each is expensive to reverse. The threshold to watch is the moment before you disclose, spend or sign, because that is the last point at which every option is still open.
The position, in short, is this. Trade marks are cheap, renewable and should be filed early for the name and logo you will actually trade under. Copyright protects your content and code automatically, and lasts 70 years after the author's death, but only if you can prove originality and ownership. Patents are the strongest and most expensive protection for inventions, and the 20-year term is only reachable if the invention is still novel when you file. Trade secrets protect what you keep secret, indefinitely, at the price of constant discipline. Register what matters, document who owns what, keep the rest confidential, and take advice before the disclosure that closes the door.