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You’ve built something worth protecting. A name, a logo, a product, a reputation. So you register a trademark and assume you’re covered. But for many Melbourne businesses, that assumption leaves significant gaps – and those gaps can be expensive to discover after the fact.
Here’s what you actually need to know about intellectual property protection in Australia.
Trademark Registration: What It Does and Doesn’t Cover
A registered trademark gives you the exclusive right to use that mark in Australia for the classes of goods and services you’ve nominated. If someone uses a mark that is substantially identical or deceptively similar to yours in the same class, you have the right to take action.
What it doesn’t do:
- Cover you in classes you haven’t nominated – registering in Class 35 (retail) doesn’t protect you in Class 41 (education) if a competitor launches a similar brand there
- Protect you internationally – Australian registration only covers Australia; you’ll need separate filings (or a Madrid Protocol application) for overseas markets
- Stop someone from using your business name – business name registration through ASIC is not IP protection; it’s an administrative record
- Automatically prevent domain name conflicts – a cybersquatter can register yourbrand.com.au even if your trademark is registered
The Copyright You Already Have (But Might Not Know About)
Unlike trademarks, copyright in Australia arises automatically – the moment you create an original work, you own the copyright. This applies to written content, designs, software code, photography, marketing materials, and more.
The practical issue? You need to prove ownership and creation date if a dispute arises. Keeping records – file metadata, version histories, employment agreements that assign copyright to your business – matters more than most people realise.
It also means that if you’re commissioning a designer, developer, or agency to create work for your business, you need a contract that explicitly assigns copyright to you. Without it, the creator retains it by default.
Trade Dress and Passing Off
Even without a registered trademark, Australian law offers protection through the tort of passing off – where a competitor misrepresents their goods or services as yours in a way that causes consumer confusion.
This is a harder case to run. You need to demonstrate that your brand has built genuine reputation, that the other party is misrepresenting an association, and that you’ve suffered (or are likely to suffer) damage. It’s expensive and uncertain.
Registered IP is almost always the better position.
Why a Brand Audit Matters Before You Scale
Before you launch a new product line, expand into a new market, rebrand, or seek investment, a brand audit should be on your checklist. This involves:
- Searching existing trademark registers to ensure your mark is clear
- Reviewing your existing registrations and their classes for gaps
- Confirming your employment and contractor agreements capture IP ownership correctly
- Checking domain and social handle availability in relevant markets
Getting this wrong at scale is far more costly than getting it right early.
What to Do If Someone Is Infringing Your IP
If you believe someone is using your intellectual property without authorisation, resist the urge to send a strongly worded message before getting legal advice. An ill-considered approach can damage your legal position.
A cease and desist letter, properly drafted, often resolves the issue without litigation. If it doesn’t, your lawyer will have already built the paper trail you need.
The Bottom Line
IP protection isn’t a one-time filing. It’s an ongoing strategy. As your business evolves – new products, new markets, new brand elements – your IP portfolio needs to keep pace.
At Morcos Law Group, we work with Melbourne businesses to build IP strategies that are practical, proactive, and connected to how your business actually operates. If you’re not sure whether your brand is properly protected, that’s worth a conversation.