7 Things Small Businesses Can Do To Protect Their Brand

Intellectual property (IP) is one of the most valuable assets your business owns.

It encompasses your brand, your products, your designs, your creative work and the processes you use.

If you do not protect your IP, you risk losing it to competitors or worse, facing legal action for infringing on someone else’s rights.

In 2024 alone, Australian businesses filed 85,945 trade mark applications, a 3% increase from the previous year, with more than 188,000 SMEs now holding a registered trade mark (IP Australia, Australian IP Report 2025). That’s not a coincidence, small businesses are recognising that securing their IP is essential for growth, reputation and market advantage.

At Empirical Legal, we can help you protect your business’ IP. Our team has extensive experience advising startups, scale-ups and SMEs across a wide range of industries and if we can’t help, we can refer you to a trusted lawyer in our referral network.

Summary of the 7 Actions

Register your trade marks, protect your designs and inventions, set clear IP ownership in contracts, monitor for infringement, safeguard copyright in online content, prepare for overseas markets and respond quickly to infringement claims. Together, these steps form a solid IP protection strategy for any business.

1. Register Your Trade Marks.
   Secure exclusive rights to your brand in Australia and deter misuse by registering your trade mark, checking availability first and using the ® symbol once approved.

2. Protect Your Designs and Inventions.
   Register patents, designs or plant breeder’s rights to safeguard the commercial value of your innovations and prevent competitors from copying unique features.

3. Lock In IP Ownership in Contracts.
   Clearly define IP rights in employment and contractor agreements to ensure your business, not external parties, owns the assets you pay for.

4. Monitor and Enforce Your Rights.
   Actively watch for infringement through brand monitoring tools, online platform reports and border protection notices to stop damage early.

5. Protect Copyright in Online Content.
   Understand and assert ownership over creative works while obtaining permission for any third-party material to avoid infringement claims.

6. Plan for Overseas Protection.
   Register your IP in each country where you operate or export to prevent foreign businesses from securing your brand or inventions first.

7. Respond Quickly to Infringement.
   Gather evidence, seek legal advice and act fast, using negotiation or legal channels, to protect your rights and strengthen your case.

1. Register Your Trade Marks

More than half of all new trade mark applications in 2024 came from Australian businesses (IP Australia, Australian IP Report 2025). A registered trade mark gives you exclusive rights to use your brand in Australia and the legal authority to stop others from using it for similar goods or services.

Without registration, you have limited protection and may face expensive disputes to prove ownership. A trade mark can protect names, logos, phrases, symbols, shapes, sounds or even scents.

Before applying, check availability through IP Australia’s TM Checker to avoid conflicts. Once registered, your trade mark lasts 10 years and can be renewed indefinitely. Always use the ® symbol once your mark is registered. It signals legal protection and can deter misuse.

2. Protect Your Designs and Inventions

Design filings in Australia rose by 9% in 2024, hitting a record 9,583 applications (IP Australia, Australian IP Report 2025). Patents and design registrations protect more than just ideas, they secure the commercial value of your innovations.

1. Patents protect new inventions or processes.

2. Registered designs protect the visual appearance of products.

3. Plant Breeder’s Rights protect new plant varieties.

If your product has a unique look or function, registration ensures you can stop others from copying it. Many SMEs use strategic timing to extend the patent application process, giving them room to secure funding before going to market.

3. Lock In IP Ownership in Contracts

IP disputes are often about who owns the rights, not just whether infringement occurred. In Australia, employers own IP created by employees as part of their job, unless the employment contract says otherwise. For contractors, the opposite applies: the contractor owns the IP unless the contract transfers it to you.

Without clear agreements, you could lose rights to logos, websites, designs or software you paid for. Before work starts:

1. Define IP ownership in employment and contractor agreements;

2. Include rights to modify, transfer or license the IP; and

3. Add confidentiality and non-compete clauses.

Example IP Ownership Clauses in Agreements

1. IP Ownership

• For employees: Employer owns

• For contractors: Contractor owns

• Empirical’s recommendation: Ensure you own all IP created by your employees or contractors in their contract.

2. Right to Modify

• For employees: Employer controls

• For contractors: Contractor controls

• Empirical’s recommendation: Specify the circumstances under and the extent to which your employees or contractors are able to modify their rights in their contract.

3. Confidentiality

• For employees: often implied

• For contractors: often not implied

• Empirical’s recommendation: Include a confidentiality clause in their contract.

4. Non-Compete

• For employees: optional

• For contractors: rarely included

• Empirical’s recommendation: Include a non-compete clause in their contract that restricts the use of IP in competition with your business.

4. Monitor and Enforce Your Rights

Registering IP is only the first step, you need to actively monitor for infringement.

Online platforms like Google Ads, Facebook and Instagram will remove advertisements that misuse registered trade marks. For imported tangible goods that infringe on your trademark, you can lodge a notice of objection with the Australian Border Force to seize the goods or stop the imports.

Brand monitoring tools and regular checks of industry competitors can help you spot misuse early. The faster you respond, the easier it is to stop the damage.

5. Protect Copyright in Online Content

Copyright automatically protects original creative works such as text, images, music and software but enforcement is up to you. Social media and website content are frequent targets for unauthorised use. If you create your own marketing material, ensure your team knows:

1. Who owns the copyright (the business or the creator);

2. How it can be used and shared; and

3. How to report suspected misuse.

If you use third-party content, get clear permission and keep records to avoid copyright infringement claims against your business.

6. Plan for Overseas Protection

Registering a trademark in Australia does not protect you overseas. If you operate internationally or plan to export, you should consider securing rights in those countries. Infringement can happen before you even launch abroad. In some markets, local businesses may register your trademark first, blocking your entry.

You can apply directly in each country or use international systems:

1. Madrid System for trademarks.

2. Patent Cooperation Treaty for patents.

Common IP Registration Paths for SMEs

1. Trade Mark

• International Option: Madrid System

• Typical Timeframe: 12-18 months

2. Patent

• International Option: Patent Cooperation Treaty

• Typical Timeframe: 18-30 months

3. Design

• International Option: Separate country applications

• Typical Timeframe: 6-12 months

4. Plant Variety

• International Option: UPOV Members

• Typical Timeframe: 12-24 months

7. Respond Quickly to Infringement

Delays in acting against infringement can weaken your case. If you suspect misuse:

1. Gather evidence, screenshots, purchase records and witness statements;

2. Seek legal advice before contacting the infringer; and

3. Consider whether negotiation, mediation or formal legal action is appropriate.

We suggest resolving disputes without litigation where possible but be ready to enforce your rights in court if needed.

Key Takeaways

Strong IP protection is an ongoing strategy. By registering, monitoring and enforcing your rights, you secure one of your most important business assets. A business that registers its first patent typically experiences higher productivity (IP Australia, Australian IP Report 2025). Trade mark ownership is a leading indicator of economic growth and SMEs are increasingly taking action.

Empirical Legal is a corporate advisory and technology law firm for startups, scaleups and SMEs.

We combine legal, technology, and business experience and expertise to deliver practical, actionable advice and solutions.

We can review your IP protection to identify any gaps and assist you in creating a tailored plan to protect and monitor your business’ IP assets.

Reach out to Empirical Legal today.