I Have a Business Idea. Can I Protect it Using a Trade Mark?

George Raptis

• 7 February 2022
• 23 February 2022
• 5 min read

After coming up with a business idea, your first instinct might be to protect that idea. However, a registered trade mark cannot protect an original idea alone. Rather, it can only protect how you express your idea through your branding. This might include the:

• name you eventually call your business;
• unique logo you use to represent your business; or
• catchy slogan that accompanies your business’ product line.

In any event, this article explains ways that you can protect your business idea before registering a trade mark.

The Importance of Non-Disclosure Agreements

At the stage where your future business is nothing more than an idea, it might be necessary to share your idea with others. This might include your business partner, potential investors or future employees. If you share your business idea with others, you should consider using non-disclosure agreements (NDA).

An NDA is a legally binding contract. Under an NDA, one or more parties agree not to share any confidential information revealed in a commercial relationship. Since NDAs are legally binding, you can pursue legal action for breach of contract if someone discloses your business idea. Depending on your circumstances, this might entitle you to:

• damages to compensate you for the loss you suffered as a consequence of the breach;
• a court-ordered injunction which can prevent the party in breach from committing further breaches; and
• other legal actions, such as a breach of fiduciary duty.

When drafting the agreement, it is important that the scope of your NDA is robust enough to protect your business idea. That is to say, your NDA should specify what is confidential information and what is not. If the other party discloses any information that is not specified as confidential in the agreement, they would not necessarily breach the NDA.

Additionally, the duration of the non-disclosure period can affect the establishment of your business. For example, if the period of non-disclosure is too short, you may not have registered your business name in time. In this instance, the other party will have the chance to register a similar business name. In any event, you should get in touch with an experienced lawyer who can help you draft your NDA.

Trade Mark Basics

After some time, you may decide to put your business idea into practice. This would likely involve:

• obtaining an Australian Business Number (ABN);
• registering your business name with the Australian Securities and Investments Commission (ASIC); and
• completing other administrative requirements like hiring staff or renting an office space.

At this stage, when your business is up and running, you should consider protecting your intellectual property immediately. Most notably, you should register trade marks to protect the features of your brand that make it distinguishable. A registered trade mark gives you the exclusive right to use your trade mark concerning your business’ goods and services. This can include your:

• business’ name, logo or slogan; and
• your products or service’s name, unique shape, colour or scent.  

For example, Apple Inc. has a registered trade mark over the name ‘Macbook’ in relation to computer goods. If you decided to sell laptops and used the name Macbook, or any name substantially identical or deceptively similar, you would likely be committing trade mark infringement.

It is best to have your IP protected in the early stages of your business operation to prevent any infringements at a volatile stage of your business’ growth. Applications for trade marks and patents can also become a lengthy process, so this should be factored into when you decide to protect your business’ IP. 

Since you gain the exclusive right to use your mark, trade mark protection allows you to:

• differentiate your business’ goods and services from others in the market;
• prevent others from using your intellectual property; and 
• pursue legal action in the instance when someone infringes on your trade mark rights. 

Trade Mark Registration

In Australia, trade mark registration is managed by IP Australia. IP Australia is a government agency that, amongst other things, reviews and registers trade mark applications. If IP Australia accepts and registers your application, you enjoy ten years of trade mark protection. However, there is no limit to the number of times you can renew your trade mark application after these ten years.

You should note that registering a trade mark for your business name is separate from registering your business name with ASIC. Registering your business name is a legal obligation to trade in Australia, whereas trade mark registration is optional protection for your intellectual property.

Once you register your business name with ASIC, you do not actually gain the exclusive right to use the name. Whilst it is true that ASIC will not register two businesses with the same name, merely registering your business name does not prevent other businesses from misusing it. For this reason, registering a trade mark to protect your business name can give you this exclusive protection.

Key Takeaways

In a broad sense, intellectual property law does not protect an idea alone. Rather, it protects how you express this idea. If your future business is nothing more than an idea, you should consider using non-disclosure agreements when discussing the idea with others. This way, you can ensure they do not reveal your business idea to others. Once your business is up and running, you should consider registering trade marks to protect the features of your brand that make it distinguishable.

If you have further questions about filing a trade mark application, our experienced trade mark lawyers would be happy to assist. Call us on 1300 657 423 or complete the form on this page.

Frequently Asked Questions