- Blog
- June 20, 2026
I’ll be blunt. Most startup founders think about intellectual property too late.
Not because they’re careless. Because they’re busy. They’re building a product, raising money, hiring people, finding customers, putting out fires — and “sort out IP” sits somewhere near the bottom of a very long list.
Then something happens. A competitor launches with an eerily similar product. An investor asks, “What IP do you own?” during due diligence and the founder can’t answer clearly. A co-founder leaves and takes their code with them. A contractor who built the website claims they own the design.
Suddenly, IP moves to the top of the list. But by then, the options are narrower and the costs are higher.
At Ascot Martin, we work with founders and startups across Melbourne and beyond. Here’s what we wish every founder knew from day one.
Your IP Is Probably Your Most Valuable Asset
For most startups, the balance sheet is thin. You don’t own much equipment. Your revenue might be modest. Your lease is month-to-month.
But your brand? The product you’ve designed? The process you’ve developed? The software your team has built? That’s where the real value lives. And that’s IP.
When investors evaluate a startup, one of the first things they look at is the IP position. Do you own your brand name? Is it trade marked? If you’ve developed proprietary technology, is it patented — or at least covered by a provisional patent? Do you have proper agreements with contractors and employees that assign IP to the company?
If the answer to these questions is “I’m not sure,” that’s a red flag.
The Three IP Questions Every Founder Should Answer
1. “What IP does my business actually have?”
Start by mapping it out. Most startups have more IP than they realise:
- Brand assets: business name, product names, logo, taglines, domain names
- Creative assets: website content, marketing materials, photography, video
- Technical assets: software code, algorithms, product designs, formulations, manufacturing processes
- Know-how: trade secrets, proprietary methods, customer data strategies
Each of these may be protectable through different IP mechanisms. Our comparison guide on patents, trade marks, and designs explains which type of protection suits which asset.
2. “Who actually owns it?”
This is where things get uncomfortable for a lot of founders. And it’s the question that causes the most expensive problems.
In Australia, the default position is that the creator of IP owns it. If a freelance developer built your app, they may own the underlying code unless there’s a written agreement saying otherwise. If a designer created your logo, same thing. If a co-founder developed key technology before the company was formally incorporated, they personally own that IP — not the company.
The fix is straightforward but needs to be done properly: use IP assignment agreements to transfer ownership to the company, and make sure every contractor and employee agreement includes clear IP ownership clauses. Don’t assume this is handled automatically. It isn’t.
3. “What should I protect first?”
If your budget is limited (and whose isn’t at the startup stage?), prioritise ruthlessly. Here’s a general framework:
Almost always: Register your trade mark.
Your brand name is your identity. If a competitor registers a similar name as a trade mark before you do, you could be forced to rebrand at exactly the wrong time. Trade mark registration is relatively quick (7–12 months), relatively affordable (see our trade mark cost guide), and provides indefinitely renewable protection. For most startups, this is the first IP filing that should happen.
If you’ve invented something novel: Consider a provisional patent.
If your competitive advantage comes from a product, process, or system that’s genuinely new, a provisional patent application secures your priority date for 12 months while you assess commercial viability. It’s the lowest-cost entry point to the patent system. Our provisional patent guide explains the process in detail.
If your product has a distinctive appearance: Look at design registration.
If the visual design of your product is a key differentiator, a registered design can prevent competitors from copying the look. Design registrations are typically faster and cheaper than patents.
The Startup IP Mistakes We See Most Often
Mistake 1: Assuming a business name registration = brand protection
We’ve dedicated an entire blog post to this misconception. An ASIC business name registration lets you trade under a name. A registered trade mark gives you exclusive legal rights to it. They’re not interchangeable.
Mistake 2: Publicly disclosing an invention before filing a provisional patent
This is the one that hurts the most, because it’s irreversible. If you publicly disclose how your invention works — at a trade show, in a pitch deck, on your website, even in a social media post — before filing a patent application, you may lose the right to patent it. In Australia, there’s a 12-month grace period for self-disclosures, but relying on it is risky, and most other countries don’t offer one.
The rule is simple: file before you disclose.
Mistake 3: Not having proper IP clauses in contractor and employee agreements
If someone creates IP for your business and there’s no written agreement assigning that IP to the company, the default legal position may be that they own it. This can create catastrophic problems during fundraising, acquisitions, or disputes.
Mistake 4: Waiting until fundraising to think about IP
Investors ask about IP during due diligence. If your IP house isn’t in order, it creates uncertainty that can delay or derail a funding round. The time to sort out IP is before you need it, not when someone’s asking for it.
Mistake 5: Filing a trade mark or patent in the wrong classes or scope
DIY filings are common among budget-conscious founders, but mistakes in classification, specification wording, or scope of claims can result in protection that doesn’t actually cover what your business does. Getting professional input at the filing stage is almost always more cost-effective than fixing problems later.
A Practical IP Checklist for Australian Startups
Here’s a simplified checklist you can work through:
- Map your IP assets: brand, creative, technical, know-how
- Confirm ownership: do you have IP assignment agreements from all founders, contractors, and employees?
- Register your trade mark: at minimum, your primary brand name in the most relevant classes
- File a provisional patent (if applicable): before any public disclosure of your invention
- Consider design registration: if your product’s appearance is a competitive advantage
- Review contractor/employee agreements: ensure IP clauses are clear and enforceable
- Set calendar reminders: for provisional patent deadline (12 months), trade mark renewal (10 years), and any other critical IP dates
Frequently Asked Questions
When should a startup first talk to a patent or trade mark attorney?
Ideally, before launch. But the second-best time is now. The earlier you engage, the more options you have and the less it typically costs. Our initial consultation is cost-free and obligation-free.
How much should a startup budget for IP?
As a rough guide: $1,200–$3,000 for a trade mark registration, $3,000–$7,000 for a provisional patent application. These are investments in business risk reduction and value creation. Our detailed guides on trade mark costs and patent costs have full breakdowns.
Can I get government grants to help with IP costs?
There are various programs that may help offset IP costs for Australian startups, including R&D tax incentives and some state-based innovation grants. We can point you in the right direction during our initial conversation.
Do I really need a patent if I have trade secrets?
Trade secrets and patents are complementary, not interchangeable. A trade secret only protects you for as long as the secret remains secret. Once a competitor independently develops the same thing or reverse-engineers your product, you have no recourse. A patent gives you enforceable exclusivity regardless of how the competitor arrived at the same solution.