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You've negotiated the price, drafted the contract terms, and agreed on the settlement date. But there's a question that often gets overlooked until after the sale: who actually owns the business name, the logo, and the website? And are they legally transferable to the new owner?
Intellectual property ownership in business sales is one of those areas where assumptions can create significant problems. The brand assets you're buying or selling need proper legal verification and transfer - otherwise, you might find yourself unable to use the business name or logo you thought you'd purchased.
Let me walk you through how IP checks work in business sales, what to look for, and how to make sure the brand assets are properly transferred.
Understanding IP in business sales:
What buyers and sellers need to know:
Invest time in an IP audit well before you list your business for sale or make an offer. Work with your lawyer to identify all brand assets - logos, trade marks, domains, content - and verify legal ownership for each one. Ensure the sale contract specifically lists which IP assets are included, how they'll be transferred, and any ongoing obligations. This preparation reduces delays at exchange and protects both parties from discovering ownership gaps after settlement when fixing them becomes far more complicated and expensive.
Intellectual property in a business context covers more than most people initially think. It's not just the logo or business name - it's the complete collection of brand assets, creative work, and proprietary systems that make the business recognisable and valuable.
Brand and trading names represent how customers know your business. A business name registered with ASIC gives you the right to use that name for trading purposes, but it doesn't provide exclusive ownership rights. If someone else has registered the same name as a trade mark, they have stronger legal protection. Business sale contracts need to specify whether registered business names are being transferred and whether any trade mark registrations are included.
Logos and visual branding often have complex ownership. If you hired a designer to create your logo, you need to verify whether copyright was transferred to your business or remained with the designer. Many businesses use logos they don't technically own because the design contract didn't include a copyright assignment. This becomes a significant problem in a business sale when you need to transfer ownership to the buyer.
Domain names and digital assets include your website address, email domains, and social media handles. Domain ownership is straightforward to verify through WHOIS records, but you'd be surprised how often domains are registered in the business owner's personal name rather than the business entity. The sale contract should include a process for transferring domain registrations, along with any associated hosting accounts and website content.
Website content and marketing materials are protected by copyright. This includes written content, images, videos, and design layouts. If you've used stock photos or licensed content, you need to verify whether those licenses are transferable. The buyer needs to know what content they can continue using and what might need replacement.
Customer databases and CRM platforms contain valuable business information, but data protection laws affect how they can be transferred. The sale contract should address how customer information will be handled, whether customers need to be notified about the ownership change, and how database access will be transferred.
Product names, processes, and proprietary systems might be protectable through trade marks, patents, or trade secrets. If the business has developed unique processes or systems, you need to document them properly and ensure they're included in the sale agreement.
IP ownership issues arise in predictable ways. Understanding these common complications helps you address them before they become problems.
Contractor and freelancer work often creates ownership ambiguity. In Australia, copyright in work created by contractors generally belongs to the contractor unless there's a written agreement transferring ownership. This means if you hired someone to design your logo, write your website content, or create marketing materials, you might not own the copyright unless the contract specifically transferred it to your business.
Personal versus business registration causes problems when business assets are registered in the owner's personal name. I see this regularly with domain names, trade marks, and even ASIC business name registrations. Transferring these assets to the buyer requires additional steps and documentation that should be planned for well before settlement.
Trade mark registration gaps mean many businesses operate without registered trade marks, relying instead on common law rights through use. This creates uncertainty in business sales because common law rights are harder to prove and transfer. A buyer might discover they have limited legal protection for the business name they've just purchased.
Trade mark registration provides stronger legal protection than just using a business name. Let me explain how trade marks work in the context of business sales.
Registered trade marks are recorded with IP Australia and provide exclusive rights to use that mark for the goods or services listed in your registration. Registration gives you stronger legal grounds to prevent others from using similar marks and makes it easier to enforce your rights. In a business sale, registered trade marks are clearly identifiable assets that can be formally assigned to the buyer.
Unregistered trade marks rely on common law protection through use. If you've been using a business name or logo for years, you may have some legal rights even without registration. However, these rights are limited and can be difficult to prove or enforce. In a business sale, unregistered marks create uncertainty because it's harder to demonstrate what IP rights are actually being transferred.
Registering a trade mark before selling your business strengthens the IP package you're offering buyers. The process involves searching existing trade marks to ensure your mark isn't already registered, filing an application with IP Australia, and responding to any objections during the examination process. Registration typically takes several months, which is why it should be addressed well before you're ready to sell.
The cost of trade mark registration varies depending on the number of classes you're registering in (categories of goods or services), but it's generally a worthwhile investment if you're planning a business sale. Buyers value registered trade marks because they provide clear, enforceable rights.
Transferring a registered trade mark requires filing an assignment document with IP Australia. The sale contract should specify that the trade mark will be assigned to the buyer and set out the process for completing the transfer. Both parties need to sign the assignment, which is then lodged with IP Australia to update the ownership records.
If the business has applied for a trade mark that hasn't yet been registered, the pending application can also be assigned. This should be addressed in the sale contract so the buyer can continue the registration process under their ownership.
As a buyer, IP due diligence helps you understand exactly what brand assets you're acquiring and whether they're legally transferable. This process should happen before you exchange contracts.
Business name ownership can be checked through ASIC's business name register. Confirm that the business name is registered to the seller and that the registration is current. Remember that ASIC registration gives you the right to use the name for trading but doesn't provide trade mark protection.
Trade mark searches through IP Australia's database show whether any trade marks are registered and who owns them. Check for both word marks (the business name itself) and logo marks (the visual design). Verify that registrations are current and cover the relevant goods or services for the business you're buying.
Domain ownership verification through WHOIS records confirms who owns the website domain and when it expires. Check that the domain is registered to the business or seller, not to a third party like a web developer or marketing agency. Also verify ownership of any related domains (different extensions like .com.au, .net.au) and email hosting accounts.
Copyright ownership for creative work requires reviewing contracts with designers, writers, and content creators. Ask for written assignments of copyright or licenses that confirm the business owns or can use the logo, website content, marketing materials, and other creative assets. If the business uses stock photography or licensed content, verify whether those licenses are transferable.
Social media account access should be confirmed, including who controls the accounts and whether they can be transferred. Some social media platforms have specific processes for transferring business page ownership that need to be followed.
Certain discoveries during due diligence should prompt closer investigation:
These issues don't necessarily kill a deal, but they need to be addressed. Sometimes the solution is negotiating with the original creator to obtain copyright assignment. Other times it means excluding certain assets from the sale and having the buyer create new versions post-settlement.
The business sale contract is where IP transfer happens legally. Vague references to "goodwill" or "business assets" aren't sufficient—you need specific documentation.
A complete schedule of IP assets listing every item being transferred: business names, trade marks, domain names, copyright materials, proprietary processes. This schedule becomes an attachment to the contract and clearly identifies what the buyer is receiving.
Ownership warranties where the seller confirms they own all the listed IP assets outright and have the legal right to transfer them. These warranties protect the buyer if ownership issues emerge after settlement.
Assignment provisions setting out how each type of IP will be transferred. Trade marks require formal assignment documents filed with IP Australia. Domains need transfer through the registrar. Copyright requires written assignment. The contract should specify the process and timing for completing each transfer.
Ongoing obligations if the seller retains any rights or has any post-settlement responsibilities. For example, if the seller is assisting with domain transfer, the contract should specify timeframes and what happens if they don't comply.
Discovery of IP ownership problems during due diligence often affects negotiations. If the business doesn't own its logo and needs to commission a new one post-sale, that cost should be factored into the purchase price. If trade marks aren't registered, the buyer might negotiate a lower price to account for the weaker IP protection.
As a seller, addressing IP issues before going to market allows you to command a better price and reduces the risk of deals falling through during due diligence. The cost of registering trade marks or obtaining copyright assignments is typically far less than the price reduction you'd face if these problems are discovered by buyers.
Let me share some situations I see regularly that illustrate how IP issues affect business sales.
Consider a business owner who built a successful retail operation over ten years. When preparing to sell, due diligence revealed that the logo - the most recognisable part of the brand - was designed by a freelancer who never signed a copyright assignment. The freelancer still technically owned the copyright.
Maybe you can contact the designer and negotiated a copyright assignment for a reasonable fee. This would be better than the alternative: either excluding the logo from the sale (severely impacting value) or having the buyer potentially face a copyright claim post-settlement. The situation should be manageable if discovered early, but it could have derailed the sale if found at the last minute.
A professional services business was being sold with what appeared to be a straightforward IP package. During due diligence, the buyer discovers that the primary domain name was registered in the selling business owner's personal name, not the business entity.
While this seems like a simple administrative issue, it will require additional documentation in the sale contract specifying the domain transfer process.
What if the domain expires shortly after settlement? This could create problems if not identified and addressed beforehand.
A buyer may carry out trade mark searches before purchasing a cafe business. If those searches reveal that while the cafe had been trading under its name for five years, another business had registered that name as a trade mark two years earlier in a related category, this discovery may allow the buyer to negotiate either: (1) a reduction in purchase price to account for the need to rebrand, or (2) having the seller resolve the conflict before settlement. Without those searches, the buyer may have purchased a business they couldn't legally operate under its existing name.
Let's look at the practical steps that protect your interests whether you're buying or selling a business.
For sellers preparing for a business sale:
For buyers conducting due diligence:
Red flags that need immediate attention:
When you're buying or selling a business, IP verification should happen well before exchange of contracts. Waiting until after settlement to discover ownership problems creates difficult situations that are expensive to resolve and might have been deal-breakers if known earlier.
Ready to ensure your business IP is properly verified and transferred?
I work with business buyers and sellers to conduct IP due diligence and document proper transfer of brand assets. Whether you're preparing a business for sale or conducting due diligence on a purchase, let's work through the IP considerations together before contracts are signed.
Yes, you can transfer an ASIC-registered business name, but this gives the buyer limited protection. The ASIC registration simply allows use of that name for trading—it doesn't prevent others from using similar names. If brand protection is important, I'd recommend registering the name as a trade mark before sale, as this provides stronger legal rights and typically increases business value.
This is surprisingly common and needs to be addressed before settlement. The options are: obtaining written copyright assignment from the original designer, commissioning a new logo before sale, or disclosing the issue to the buyer and adjusting the sale price accordingly. What you can't do is transfer something you don't own—that creates legal problems for both parties.
Trade mark registration in Australia typically takes 7-9 months from application to registration, though it can be faster if there are no objections. This timeline is one reason I recommend that business owners address trade mark registration well before they're ready to sell. If you're planning a business sale within the next year, starting the trade mark registration process now strengthens the IP package you'll offer buyers.
Social media accounts that represent the business brand should generally transfer with the sale, as they're part of the business's customer relationships and marketing presence. The sale contract should specify which accounts are included and how access will be transferred. Personal accounts wouldn't typically transfer.
Copyright protects creative works like logos, website content, and marketing materials. It arises automatically when work is created and typically belongs to the creator unless there's written assignment. Trade marks protect brand identifiers—names, logos, slogans—used in commerce and require registration with IP Australia for strongest protection. In a business sale, both matter: copyright determines who owns creative assets, while trade marks determine who has exclusive right to use brand identifiers.
Generally, no. Until settlement occurs and IP assets are formally transferred, they remain the seller's property. The sale contract might include provisions allowing limited pre-settlement use, but this should be explicitly documented. Using the business name or logo before you legally own them creates potential IP infringement issues, even with a signed contract.
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