Copyright vs Trade Mark vs Trade Secret: What’s Right for Your Business?

If you run a small or medium business, you’ve probably been told you need to “protect your IP.” That’s good advice – but “intellectual property” covers a lot of territory. Copyright, trade marks, patents, designs, trade secrets… it’s easy to get lost in the jargon and end up protecting the wrong thing (or nothing at all).

Let’s cut through the noise and look at the three that matter most for most SMEs: copyright, trade marks, and trade secrets.

Copyright: automatic protection (but not for everything)

If you’ve ever created something original – a logo, a photo, a website, a marketing brochure, an app, even your product manual – congratulations, you already own copyright in it. You don’t have to apply for anything or pay a fee. Copyright protection arises automatically when you create an original work.

That sounds simple (and it is), but there are some catches. Copyright doesn’t protect ideas – only the expression of those ideas. If you dream up a clever business process, copyright won’t stop someone else from doing the same thing in their own words. And if you hire someone else to design or write for you, make sure the copyright ownership is transferred to your business in writing. Otherwise, your designer or developer might still own it.

Think of copyright as your “creative shield.” It guards your written, visual, and digital materials – but not your brand name or your secret recipe.

Trade Marks: your brand’s legal backbone

A trade mark protects the things customers recognise you by – your business name, logo, tagline, or even a unique sound or colour. It’s what lets people know they’re buying your product, not a knock-off.

Unlike copyright, trade marks aren’t automatic. You’ll need to apply to IP Australia, and the process takes a few months. But it’s worth it. Registration gives you the exclusive right to use that name or logo for your goods or services across Australia – and to stop others from using something confusingly similar.

Without a registered trade mark, you might still have some protection under “passing off” or consumer law, but that’s slow, expensive, and uncertain. With registration, you can take action quickly and confidently.

A few quick trade mark tips:

• Check before you invest — do a search to make sure your name or logo isn’t already taken.
• Be specific — register for the goods and services you actually provide (and plan to provide).
• Renew it — trade marks can last forever, as long as you renew every 10 years.

Your trade mark is like your business’s name badge – make sure no one else wears it.

So which one’s right for you?

In most cases, you’ll need a mix:

• Copyright protects the content you create.
• Trade marks protect your brand identity.
• Trade secrets protect your competitive edge.

Here’s how that looks in practice:

• A HVAC company’s logo and name → trade mark.
• Its marketing materials, website, and manuals → copyright.
• Its client database and pricing strategy → trade secrets.
  
  Each layer of protection plays a different role, but together they build a strong wall around your business assets.

Common mistakes SMEs make

1. Assuming the business name registration = trade mark.
   Registering your business name with ASIC doesn’t give you ownership rights. Only a trade mark does.
2. Forgetting to transfer copyright.
   If a freelancer designs your logo or writes your content, get a written assignment of copyright.
3. Ignoring confidentiality.
   Don’t wait for a problem — have NDAs (“non-Disclosure Agreements) in place with staff and contractors from day one.
4. Letting protection go stale.
   Brands evolve. Review your IP every year or two to make sure your registrations and agreements still fit your business.

The bottom line

You don’t have to be a big corporation to take IP seriously. In fact, smaller businesses are often more exposed — because your brand and know-how are your biggest assets. A little proactive protection now can save a lot of pain (and legal fees) later.

If you’re not sure what to protect or how to do it, that’s where we come in. At Clearscope Legal, we help businesses identify what’s valuable, lock it down, and keep it working for them – not their competitors.

Reach out by email admin@clearscopelegal.com.au or on 03 8683 5645 and we’ll be happy to line up a free initial consult.