Protecting What’s Special

Protecting What’s Special

Here’s a troubling thought: what if everything you’ve built—your brand, your reputation, your distinctive voice in the marketplace—could simply be taken or copied by someone else tomorrow? It happens more often than you’d think, and the psychological weight of that realisation hits hardest after the damage is done. But there’s a simple, powerful tool that can prevent this nightmare entirely. Sharon Givoni, intellectual property lawyer, explains why protecting what makes you special isn’t just smart business—it’s essential.

You’ve Built Something Special. Now Protect It

You may have the most unique business in the world, but if you don’t protect your distinctiveness, someone else can copy what you have worked hard to create.

This is not paranoia; it’s practical business sense. You have invested time, energy, money, and creativity into building a point of difference in the marketplace. But what action have you actually taken to legally protect those distinctive elements? If the answer is “not much,” you’re not alone—and you’re taking a real risk.

You have worked hard to create a point of difference for your business in the marketplace, but what legal action have you taken to protect the distinctive elements you’ve created? The special elements of your business that are most likely to need protecting include your brand name, the visual graphics that you use, and the way you describe your business through written materials. These are not small details—they are the foundation of how customers recognise and remember you.

What Exactly Is Intellectual Property?

Protecting what you have built is not always top-of-mind when you are busy addressing the day-to-day running of your business. You are focused on cash flow, customer acquisition, staff management, and keeping the lights on. Intellectual property protection can feel like a luxury—something to think about once you’ve “made it.” But this is one of the most dangerous assumptions a business owner can make. The moment you stop thinking about protection is often the moment someone else copies your most valuable assets and walks away with them.

However, intellectual property protection is really important. It is not a nice-to-have; it is a fundamental pillar of building a business that has lasting value. Here’s why: everything that makes your business distinctive—everything that sets you apart from your competitors—exists in a form that cannot be locked in a safe or guarded by a security guard. It exists as ideas, creative work, brand recognition, and accumulated goodwill. That’s what makes it both incredibly valuable and incredibly vulnerable.

It’s called intellectual property, which is in essence the content that you can’t see or touch—or in legal terms—the intangible assets that a business owns. If you think about the assets most businesses rely on, many of them are invisible. You cannot walk into your office and point to your brand reputation. You cannot pick up your customer goodwill. You cannot hold your distinctive design in your hand. Yet these invisible assets are often worth far more than your physical office, your equipment, or your inventory.

Intellectual property is the legal framework that protects these invisible, intangible assets. It is the tool that allows you to own, control, and profit from the creative and distinctive work you have done. Without it, your work is essentially unprotected—available for anyone else to copy, use, and profit from, without your permission or compensation.

Think about it this way: if you invented a new manufacturing process that saves you thousands of dollars every year, that process has value. But if a competitor discovers how you do it and copies it, that value disappears overnight—unless you have legal protections in place. If you spent two years developing a distinctive brand identity that customers recognise and trust, that brand has enormous value. But if a competitor uses a confusingly similar name and logo, they can piggyback on the goodwill you have built—unless the law protects you. If you created a beautiful piece of artwork or design, that creation has value. But if someone downloads it from the internet and uses it commercially without your permission, they profit from your creativity—unless copyright protects you.

The Three Main Categories of Intellectual Property

Copyright, trade marks, and designs are what we are referring to when we talk about the most common forms of intellectual property protection in Australia. Each one protects a different type of creative or distinctive work, and each one operates under different rules. Given that often so much thought goes into creating these assets, it is absolutely critical to give your work legal protection through all three where relevant.

Copyright: Protecting Creative Works

Copyright is the protection that covers creative and original works. This includes graphics and written works, photographs, software code, videos, music, and architectural designs. Copyright protects the expression of an idea—the actual way you have created something—rather than the idea itself.

When you create an original work—whether that is a piece of writing, a design, a photograph, or a piece of software—copyright exists automatically. You do not need to register it, publish it, or mark it with a copyright symbol. The moment the work is created, it is protected. This is different from many other countries, where registration is required.

However, this automatic protection creates a problem: it is difficult to prove that you created something first or that you own it. If there is a dispute, you need evidence that you created the work, when you created it, and in what form. Without documentation, you may find yourself in a costly legal battle trying to prove ownership.

2025 Example: A Brisbane copywriter created a 50-page brand guide for a client in March 2025. The contract made no mention of who owned the copyright. By September, the copywriter had sold similar (but not identical) versions of the same framework to five other clients in the same industry. The original client discovered this and was furious, but had no legal recourse because copyright ownership had not been explicitly transferred in writing. The copywriter owned it by default. The client had paid thousands of dollars for what they assumed was bespoke, proprietary work—and it was not even close to unique.

Copyright: What You Need to Know

Copyright covers a huge range of creative works. It protects graphics and written works, photographs, software, music, films, videos, podcasts, animations, architectural drawings, and many other creative things you can think of. If you have created something original and it is expressed in a tangible form—meaning you can see it, hear it, or touch it in some way—copyright probably protects it.

Think about what copyright actually covers in the real world. If you write a blog post, that is protected by copyright. If you take a photograph, that is protected by copyright. If you compose a piece of music or record a song, that is protected by copyright. If you write software code, that is protected by copyright. If you create a video, design a logo, write an email newsletter, or draw an illustration, all of these things are protected by copyright the moment they are created.

The breadth of what copyright covers is one reason it is so important. Almost everything a modern business creates—whether you are a creative agency, a tech company, a publishing business, or a service provider—probably involves copyrightable material. Yet many business owners have no idea who actually owns that material.

There are all sorts of rules surrounding copyright law, some of which might surprise people. Copyright law in Australia is complex, and there are many exceptions, special cases, and situations where the rules work differently than you might expect. Understanding these rules is crucial because getting copyright wrong can cost you thousands of dollars.

For example: Many business owners think that if they buy a licence to use a piece of music on their website, they own it. They do not. They have a licence to use it, but copyright remains with the composer or the music publisher. If they stop paying the licence fee or if the licence agreement ends, they must remove the music or face legal action.

Another surprising rule: if you hire a freelancer to create something for you—say, a photographer to shoot product images, or a designer to create social media graphics—you do not automatically own the copyright in that work. The freelancer owns it unless you have a written agreement transferring copyright to you. This catches many business owners off guard.

2025 Example: A Sydney-based e-commerce business hired a professional photographer in January 2025 to shoot product images for their website. The photographer sent beautiful images, and the business started using them immediately on their website, in advertisements, and in social media posts. In June, the photographer discovered the images being used and sent a cease and desist letter, claiming copyright infringement. The photographer owned the copyright because there was no written copyright assignment. The business had to stop using the images, scramble to find replacements, and negotiate a settlement with the photographer. A five-minute conversation and a simple one-page copyright assignment document at the start would have cost nothing and would have prevented this expensive mess.

Another surprising rule that catches people out: if you use copyrighted material without permission—even if you did not know it was copyrighted—you can still be liable for copyright infringement. Just because something is on the internet does not mean it is free to use. Just because you found it on a website does not mean you have the right to use it. The last thing you want to do is end up receiving a cease and desist letter from an angry rights holder, or worse, being sued for damages.

Trade Marks: Protecting Your Brand Identity

A trade mark is a sign that distinguishes your goods or services from those of other traders. It can be a word, a logo, a phrase, a sound, a colour, a shape, or even a smell. Trade marks protect your brand identity in the marketplace and give you exclusive rights to use that mark in Australia (or internationally, if you register in multiple countries).

Your brand name and logo can be extremely valuable—whether it is your very own name or a made-up name such as KODAK, APPLE, or VIRGIN. Your brand name forms an important part of the personality and image of your business, and the more you use it, the more you build up goodwill and reputation in it. Over time, customers begin to associate your brand with a certain level of quality, style, or service. That association is worth real money.

Taglines also count as protectable trade marks. For example, the phrases “glass and a half,” “oh what a feeling,” and “moments like these” speak for themselves without any reference to the brand to which they relate. These taglines have become so iconic that they are instantly recognisable. They have become synonymous with the brand itself. That is the power of a well-protected trade mark.

Why Trade Mark Protection Is So Valuable

Trade mark protection is by far the best sort of protection that you can get for your name. Subject to some minor exceptions, it gives you exclusive rights to use the brand in Australia. Here’s what it is not: a domain name registration, a company name registration, or a business name registration are merely administrative matters and do not give you any ownership rights over the names. Don’t get fooled into thinking otherwise.

The other beauty of owning a registered trade mark is that you can then display the ® symbol next to it to show everyone that the mark is registered. This serves as a warning, or to put it more bluntly—a “back off” symbol to ward off unscrupulous copycats. It tells the world that you take your brand seriously and that you have the legal machinery in place to enforce your rights.

2025 Example: A Gold Coast-based fitness brand registered their distinctive name “PowerFlow Collective®” as a trade mark in February 2025. Within six months, they discovered a copycat business operating under a nearly identical name in a neighbouring suburb. Because the trade mark was registered, they were able to send a formal demand letter and the competitor backed down within two weeks, avoiding a costly legal battle.

Designs: Protecting Visual Appearance

Design protection covers the visual appearance of a product or object—its shape, pattern, colour, texture, or ornamentation. If you have created a distinctive product design, a unique packaging design, or a distinctive visual appearance that customers recognise and associate with your brand, that can be registered as a design.

Design protection is less commonly discussed than copyright and trade marks, but it can be extremely valuable. If you have spent significant time and money developing a distinctive product look, design registration prevents others from copying that look for 10 years (or longer, depending on when it is registered and renewed).

Key Considerations for Your Business in 2026

Before moving forward, ask yourself these critical questions:

Have you protected your intellectual property assets?

Do you know what they actually are?

Is this something that you should turn your mind to?

What would it cost you if a competitor copied your brand tomorrow?

Do not overlook this important side of your business. Intellectual property protection is not a luxury for large corporations—it is a fundamental business tool for anyone serious about building lasting value.

The Bottom Line: Don’t Do It Yourself—Use a Lawyer

So here’s the uncomfortable truth: intellectual property law is not intuitive. It is technical, it is specific, and it is full of traps for people who assume common sense will guide them. You might think that paying a designer means you own the work. You might assume that registering a business name gives you brand protection. You might believe that because you came up with an idea first, you own it. All of these assumptions are wrong, and all of them can cost you dearly.

This is why you should not attempt to navigate intellectual property protection on your own. Use a lawyer. Use a trade mark attorney. Use a specialist who understands the rules, knows the exceptions, and can draft the documents that actually protect you. The cost of getting professional advice upfront is a fraction of the cost of fixing a problem after it has already gone wrong.

A lawyer can ensure that your copyright assignments are watertight. A trade mark attorney can conduct proper searches before you file an application, reducing the risk of opposition or rejection. A specialist can draft confidentiality agreements that actually work. They can spot the gaps in your contracts that leave you vulnerable. They can tell you whether your brand is registrable, whether your design is protectable, and whether your copyright ownership is clear.

Most importantly, a lawyer can give you certainty. When you have invested thousands of hours and tens of thousands of dollars building something special, you do not want to discover—too late—that you never actually owned it in the first place. That is not the kind of surprise any business owner needs. Protect what makes you special. Do it properly. Do it now. And do it with the help of someone who knows what they are doing.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.