Australia: Five things start-ups need to know about protecting intellectual property

Last Updated: 19 November 2015
Article by Dan Pearce, Emily Booth and Madeleine Stevens
Most Read Contributor in Australia, September 2017

The early stages of a start-up business can be a minefield. Avoid potential battles later on by considering at least these five intellectual property essentials and common misconceptions about them.

  1. Signed non-disclosure agreements are not always practical

As lawyers, we generally prefer to see the person you are discussing your confidential information with sign a non-disclosure agreement. This will make it clear that the parties agreed what information was confidential and that it was intended not to be further disclosed. If the other party then breaks this agreement, the breach will be much easier to enforce. However, the start-up world is not always conducive to such formalities.

Think creatively about how you could draw the other party's attention to the confidential nature of the information – there might be terms agreed to electronically if giving an online demonstration of your product for instance. Or if asking for a signed agreement, electronically or otherwise, won't be practical, at least make sure that all information physically shown to a third party has a confidential watermark or verbally draw the person's attention to this fact, then make a note of this interaction.

At law, in the absence of a signed agreement, what ultimately needs to be shown is that the recipient should have known that the information disclosed implied a duty on that person to keep it confidential. A signed agreement is preferable but if a signed agreement is not realistic commercially, look at other ways you can draw the person's attention to this fact.

  1. Patents are commonly misunderstood

Patents are often confused with other types of intellectual property, and people often do not realise that to obtain a patent, your idea must be a new and inventive device, substance, method or process. Meeting the inventive step is difficult and, for instance, software codes may not meet this step as often as people think. A patent or a design registration will however give you a very powerful right to enforce in your intellectual property for up to 20 years. The registration process does, however, need to be commenced early on and can be a costly and time-consuming exercise. 

  1. Trade marks are king

Trade marks can give you the exclusive right to use your brand name or logo in respect of the goods and services you sell. Trade marks can be registered fairly inexpensively, and registration carries with it the goodwill and reputation of the business, which becomes more valuable as the business grows.  It is much harder to enforce rights in an unregistered trade mark. The best trade marks are memorable, clever or catchy words or distinctive logos. Avoid descriptive words because a trade mark is unlikely to obtain registration if it does not distinguish your product or service but merely describes what it is. Equally, while the word 'apple' would not be able to be registered in the class of goods that covers fruit it was able to be registered for computer products.

  1. The good news is copyright protection is a given

Copyright is an automatic right that subsists in creative works, for example, musical, dramatic, literary and artistic works.  Importantly, it will usually protect software code, as it is written. In Australia, you do not need to register your copyright interests. There is no copyright in an idea itself, the rights are enforceable upon the idea being reduced to a material form. So always ensure that the material (for example, written code) is dated and documented.  Copyright can be assigned and licensed and is a valuable commodity that covers the 'look and feel' of your idea.

  1. Don't assume you will own the intellectual property without a contract

Be aware that in almost all cases, copyright in a creative work (such as code or a logo you pay a developer to create) will remain with the author, regardless of whether you commissioned the work. Therefore where a contractor has been retained to produce material that attracts copyright protection, ensure that there are the relevant assignments in the contract to ensure that you own all the rights you paid to have created.

Many arrangements with service providers will be informal arrangements, particularly at the start of a project.  Document these arrangements as best as you can to avoid issues and disputes down the track. Include clear provisions with respect to who owns the IP, particularly in the case of an independent contractor providing services, or between partners. Employers will own the IP in the material created by employees in the course of their employment, but the tests of who is an employee and what is in the course of employment are not straightforward and need to be examined for many reasons (not just IP alone).

Finally, if you are licensing IP you should consider if you have the right to transfer whatever you are licensing to third parties down the track and review the terms of the licence carefully. These clauses will often not come back to bite until there is a dispute over IP that has become incredibly valuable to a business, and importantly may affect any sale or valuation of your business when it comes time to cash in on your IP.

Every business is different and so each business' IP strategy will also be different. The above is just a taste of the issues that could become relevant.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dan Pearce
Emily Booth
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.