Your trademark is more than a logo or name—it represents your brand identity and commercial reputation. So, what happens if someone infringes your trademark in Australia? 

If you hold a registered trademark and discover unauthorised use, there are clear legal steps you can take to enforce your rights and protect your business. Trademark infringement is a serious issue that can cause brand confusion, customer loss and financial damage. 

Fortunately, Australian law provides strong protections for trademark owners. In this guide, we walk you through how to confirm infringement, enforce your rights and seek legal remedies under the Trade Marks Act 1995 (Cth).

A Quick Overview: What Happens If Someone Infringes Your Trademark?

If someone uses a trademark that is substantially identical or deceptively similar to yours without permission, it may be an infringement. Here’s what you can do:

• Confirm the infringement with proper evidence.
• Send a cease and desist letter.
• File an opposition with IP Australia (if applicable).
• Consider settlement or licensing discussions.
• Initiate legal proceedings if necessary.
• Report the infringement on online platforms.

Enforcing your trademark rights promptly is crucial to maintaining your brand’s integrity.

Step 1: Confirm the Infringement

Before taking action, ensure that the unauthorised use qualifies as trademark infringement under Australian law.

What Qualifies as Infringement?

• Substantially Identical or Deceptively Similar: The infringing mark closely resembles your registered trademark.
• Same or Similar Goods/Services: The infringing party operates in the same or a related industry.
• Likelihood of Confusion: Customers may be misled into believing the products or services come from your business.

Review your trademark registration details to check the scope of protection and ensure that the alleged infringement falls within the classes and categories covered.

Step 2: Gather Evidence of Infringement

Solid evidence is essential if you plan to take legal or administrative action.

Types of Evidence to Collect

• Screenshots of websites, social media posts or online listings
• Physical examples of packaging or promotional materials
• Records of customer complaints or confusion
• Copies of the infringing party’s advertisements

The more comprehensive your documentation, the stronger your case will be.

Step 3: Send a Cease and Desist Letter

A well-drafted cease and desist letter is often the first step in resolving a trademark dispute.

Why This Step Matters

• Legal Notification: It formally puts the infringer on notice of your rights.
• Avoids Court: Many infringers comply after receiving a legal warning.
• Shows Good Faith: Courts often expect you to attempt resolution before initiating legal proceedings.

A lawyer can help craft a letter that clearly outlines your rights and demands that the infringer stop using the trademark immediately.

Step 4: Oppose Their Trademark Application (If Applicable)

If the infringer is trying to register the mark with IP Australia, you may be able to file an opposition.

Opposing a Trademark Application

• Must be lodged within two months of the trademark being accepted for registration
• Requires valid grounds, such as prior use, deceptive similarity or bad faith

This process can prevent a conflicting trademark from being officially registered and protect your existing rights.

Step 5: Negotiate a Resolution

In some cases, negotiation can resolve the issue without further conflict.

Options for Negotiation

• Settlement: Agree on terms that resolve the dispute without court involvement.
• Licensing Agreement: Permit the use of your trademark under specified conditions, such as a fee or limited usage rights.
• Rebranding: The infringing party may agree to stop using the mark within a defined timeline.

Alternative dispute resolution (ADR) methods like mediation can help both parties reach a mutually acceptable outcome.

Step 6: Take Legal Action Under the Trade Marks Act

If informal steps fail, court proceedings may be necessary to enforce your trademark rights.

Legal Remedies Available

• Injunctions: Court orders requiring the infringer to stop using your trademark.
• Damages: Compensation for financial losses due to the infringement.
• Account of Profits: The infringer may be ordered to surrender profits made through unlawful use.
• Delivery Up: Seizure or destruction of infringing goods.

Legal action is typically initiated in the Federal Court of Australia and must be supported by strong evidence and legal arguments.

Step 7: Report Online Trademark Infringement

In the digital age, many cases of trademark misuse happen online. Most platforms have dedicated trademark complaint processes.

Platforms That Accept IP Complaints

• Facebook and Instagram: Submit a trademark complaint through their Rights Manager tools.
• Amazon: Use the Report Infringement tool in the Brand Registry.
• Google Ads: File a complaint for improper use of your trademark in ads.

Quick online enforcement can prevent further customer confusion and revenue loss.

Why Legal Advice is Essential in Trademark Infringement Cases

Trademark law in Australia can be complex, especially when dealing with enforcement, evidence, and court procedures.

Benefits of Engaging a Lawyer

• Assess whether infringement has occurred
• Draft strong cease and desist letters
• Advise on IP Australia procedures and deadlines
• Represent you in court or settlement negotiations

Failing to take the right steps can jeopardise your rights or lead to costly mistakes. Legal guidance ensures that your enforcement strategy is sound, strategic and legally compliant.

Preventative Tips: How to Minimise Trademark Infringement

While you can’t prevent all infringement, proactive management can reduce the risk. The sooner you identify a potential infringement, the easier it is to take effective action. Here’s how to approach it:

• Register Your Trademark: Only registered marks have full protection under the Trade Marks Act 1995 (Cth)
• Use Your Trademark Consistently: Strengthens its recognition and legal standing
• Monitor Your Market: Regularly check competitors, marketplaces, and industry events
• Set Up Alerts: Use Google Alerts or trademark watch services

Final Thoughts

So, what happens if someone infringes your trademark in Australia? The law gives you a structured path to respond, starting with evidence gathering, informal resolution and escalating to legal action if needed. Acting swiftly and strategically protects your brand, reputation and business value.

With expert legal guidance, you can ensure your rights are enforced effectively while avoiding unnecessary disputes or expenses.

Need Help Enforcing Your Trademark Rights?

At Rotstein Commercial Lawyers, we specialise in trademark enforcement, IP disputes, and brand protection strategies. Whether you’re sending a cease and desist letter, opposing a registration or filing court action, our experienced legal team will stand by your side.

Don’t let others misuse your brand—partner with Rotstein Commercial Lawyers and defend your trademark with confidence. Call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation.

Buying into a franchise system can be a promising path to business ownership, but should you start fresh or buy an existing location? If you’re considering purchasing a running franchise, it’s essential to weigh the pros and cons before making a decision. So, what are the pros and cons of buying an existing franchise in Australia?

While an existing franchise offers immediate income and brand recognition, it may also come with hidden liabilities or operational issues. In this guide, we break down the advantages and disadvantages, key factors to consider, and explain why seeking professional legal advice is crucial before signing any contracts.

A Quick Overview: Pros and Cons of Buying an Existing Franchise

Buying an existing franchise has both financial and operational advantages, but it may involve risks if not thoroughly assessed. Key takeaways include:

Pros:

• Immediate cash flow
• Established customer base
• Proven business model
• Trained staff and existing processes
• Brand recognition
• Easier financing

Cons:

• Higher upfront costs
• Potential liabilities
• Limited flexibility in contracts
• Resistance to operational changes
• Franchisor approval needed

Benefits of Buying an Existing Franchise

There are several compelling reasons why entrepreneurs choose to buy an existing franchise instead of starting from scratch. Let’s explore the most important advantages.

1. Immediate Cash Flow and Existing Customer Base

Unlike a new business that takes time to build traction, an existing franchise usually has ongoing revenue and a steady customer base. This means:

• Faster return on investment (ROI)
• Quicker break-even period
• Reduced marketing and advertising efforts early on

2. Proven Business Model and Systems

You’re buying into a franchise that already follows a tested operational framework:

• Streamlined procedures and processes
• Consistent supply chains
• Set standards for quality and service

This lowers the risk compared to launching an independent or brand-new business.

3. Easier Financing

Banks and financial institutions may be more willing to fund your purchase if the franchise has a good track record:

• Predictable income makes repayment easier.
• This means lower risk perceived by lenders.

4. Trained Staff and Established Operations

An existing franchise often includes a team of trained employees and functioning operational systems:

• It saves time on hiring and onboarding.
• It allows for a smoother transition and continuity.

5. Brand Recognition and Corporate Support

Franchise brands usually offer national marketing campaigns and widespread brand awareness:

• You benefit from their existing reputation.
• Centralised marketing support can reduce your advertising burden.

Risks and Challenges to Consider

Despite the advantages, buying an existing franchise also carries certain risks. These downsides can affect your profitability, operational freedom and legal obligations.

1. Higher Upfront Costs

You’re not just buying equipment and assets; you’re also paying for goodwill and an established customer base:

• Purchase prices may include intangible value.
• Upgrades or renovations may still be needed.

2. Hidden Liabilities and Reputation Issues

Previous mismanagement could leave behind problems that aren’t visible at first glance:

• Unpaid debts
• Poor staff culture
• Negative public perception

Always conduct financial and legal due diligence to uncover such issues.

3. Limited Negotiation Power

You may have to accept existing contracts and terms:

• Fixed supplier agreements
• Locked-in lease arrangements
• Existing franchise terms that may not favour you

4. Resistance to Change

Implementing operational improvements or cultural changes may be met with:

• Staff resistance
• Customer pushback
• Friction with existing suppliers

5. Franchisor Approval Required

You can’t simply take over a franchise without approval. The franchisor must vet and approve new owners:

• This can delay the purchase
• You may need to meet specific qualifications

6. Potentially Outdated Equipment or Location Issues

You may inherit older equipment or a premises needing upgrades:

• Budget for renovations
• Consider relocation or refurbishing if needed

Key Legal Considerations Before Buying

Before proceeding, it’s critical to understand the legal aspects and secure the right protections. Here are the top areas where legal guidance is essential.

Review of the Franchise Agreement

The franchise agreement outlines your rights, obligations and restrictions:

• Ensure terms are fair and not overly restrictive
• Review obligations for renewal, exit and ongoing fees

Examination of the Disclosure Document

Under the Franchising Code of Conduct, the seller must provide a disclosure document:

• Includes financial history and legal disputes
• Must be reviewed at least 14 days before signing

Lease and Asset Agreements

Check if the business location lease is transferable or renegotiable:

• Confirm no hidden fees or obligations
• Ensure you’re not liable for previous breaches

Compliance with the Franchising Code of Conduct

The transaction must follow the Code regulated by the ACCC:

• Right to a cooling-off period
• Dispute resolution mechanisms
• Obligations on both seller and franchisor

Due Diligence Checklist

To make an informed decision, review the following before buying:

• Financials: Profit and loss statements, tax returns, cash flow
• Franchise Agreement: Terms, fees, obligations, renewals
• Staff: Employment contracts, training levels, team morale
• Supplier Contracts: Pricing, duration and exclusivity
• Lease: Rent terms, maintenance responsibilities, tenure
• Franchisor Relationship: Support levels, compliance history
• Customer Base: Retention rates, reviews and reputation

Final Thoughts

Buying an existing franchise offers a quicker route to business ownership with many potential benefits, including cash flow and brand support. However, risks such as high costs, legacy issues and restrictive terms must be carefully evaluated.

Due diligence, financial review and legal analysis are vital to making a confident decision. With the right preparation and professional advice, purchasing an existing franchise can be a strategic and profitable investment.

Need Legal Advice Before Buying a Franchise?

At Rotstein Commercial Lawyers, we provide expert legal guidance on franchise purchases, contract reviews and due diligence. Whether you’re considering buying an existing franchise or negotiating terms with a franchisor, our team can help you navigate the legal landscape and protect your investment.

Partner with Rotstein Commercial Lawyers to ensure your franchise journey starts with clarity and confidence. Call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation.

Franchise agreements may seem rigid, but there’s often more room for flexibility than you might expect, especially if you know where to look. 

If you’re wondering whether you can negotiate a franchise agreement in Australia, the answer is yes. Key terms, such as fees, territory rights, contract length and exit conditions, are often negotiable, as long as the agreement remains compliant with the Franchising Code of Conduct and the Competition and Consumer Act 2010.

Before signing anything, it’s also worth reviewing the disclosure document, checking the franchisor’s track record and getting clear on your obligations. There’s more to it than just signing on the dotted line. If you’re considering joining a franchise, read on to see what you can negotiate and how to approach it with confidence.

A Quick Overview: Can You Negotiate a Franchise Agreement?

Yes, franchise agreements can be negotiated in Australia. The Franchising Code of Conduct allows room for discussion on specific terms, although franchisors may not always be flexible on everything. Key areas where negotiation is possible include:

• Franchise fees and ongoing royalties
• Territory exclusivity
• Length of the franchise term and renewal rights
• Termination and exit clauses
• Level of training and support

Legal advice is highly recommended to ensure your interests are protected and your obligations are clear.

Understanding Australian Franchise Laws

Before entering any negotiation, it’s important to understand the legal framework that governs franchising in Australia.

The Franchising Code of Conduct

The Franchising Code of Conduct, regulated by the Australian Competition and Consumer Commission (ACCC), applies to all franchise agreements in Australia. It sets out mandatory disclosure obligations and conduct requirements for both franchisors and franchisees.

Key features include:

• A 14-day disclosure period before signing the agreement
• The right to a cooling-off period
• Requirements for dispute resolution procedures

Competition and Consumer Act 2010 (Cth)

The Competition and Consumer Act 2010 (Cth) also impacts franchise agreements, particularly concerning:

• Unfair contract terms
• Misleading or deceptive conduct

These laws protect franchisees from being locked into unfair or one-sided agreements.

Key Terms You Can Negotiate in a Franchise Agreement

While some franchisors offer standardised agreements, there are usually several terms that may be open to negotiation. Below are the main areas where negotiation is possible:

1. Initial and Ongoing Fees

Franchise fees typically include an initial franchise fee, ongoing royalties and contributions to a marketing fund. You may be able to:

• Request a reduction in the initial fee.
• Negotiate a royalty-free grace period.
• Clarify how marketing contributions are used.

2. Territory Rights

Exclusivity is a major concern for franchisees. Negotiating for a clearly defined and exclusive territory can prevent future competition from other franchisees or company-owned outlets in the same area.

• Ask for maps and boundaries in writing.
• Seek clauses that prevent overlap with nearby franchises.

3. Term and Renewal Conditions

Most franchise agreements have an initial term of 5–10 years, with renewal options.

• Negotiate for a longer initial term.
• Ensure fair and automatic renewal terms.
• Avoid conditions that give the franchisor unilateral rights to deny renewal.

4. Exit and Termination Clauses

Understand your rights if things don’t go as planned.

• Request flexible exit clauses without heavy penalties.
• Ensure that termination rights aren’t skewed in favour of the franchisor.
• Look for fair dispute resolution procedures.

5. Training and Ongoing Support

Franchisors usually provide training and business support, but the level and scope can vary greatly.

• Clarify training duration, content and cost.
• Ask about ongoing operational, marketing and technical support.
• Include support commitments in the contract.

Due Diligence: What to Do Before Signing

Negotiating a franchise agreement isn’t just about haggling over terms. It’s also about conducting thorough due diligence to understand what you’re getting into.

Review the Disclosure Document

The Franchising Code mandates that franchisors provide a disclosure document at least 14 days before you sign. This document includes:

• Financial statements
• Contact details of current and past franchisees
• Legal proceedings involving the franchisor

Reading it carefully is a must.

Assess the Financial Viability

• Ask for profit and loss statements or financial projections.
• Consult an accountant or financial advisor to evaluate the business model.

Speak to Existing Franchisees

• Get honest feedback on the franchisor’s support, training and responsiveness.
• Ask about hidden costs or unexpected challenges.

Understand Post-Termination Obligations

Some agreements include restrictive covenants that limit what you can do after the franchise ends.

• Review non-compete clauses.
• Clarify any obligations to return materials or equipment.

Common Mistakes to Avoid When Negotiating a Franchise Agreement

• Assuming the agreement is non-negotiable: Many franchisees don’t realise they have the right to request changes.
• Skipping legal advice: Franchise law is complex, and even small oversights can be costly.
• Focusing only on fees: Other terms like territory, renewal and support can be equally important.
• Rushing into signing: Always take the time to review documents and consult professionals.

Benefits of Negotiating Your Franchise Agreement

Negotiating isn’t about being difficult—it’s about protecting your business investment. Here are some key benefits:

• Improved profitability: Lower fees and better support increase your chances of success.
• Reduced risk: Fairer terms mean less exposure to legal or financial troubles.
• Stronger relationship: Open communication during negotiation fosters mutual respect.

Final Thoughts

So, can you negotiate a franchise agreement in Australia? Absolutely. While not every term may be flexible, taking the time to review, negotiate and understand your agreement is essential to your long-term success as a franchisee. The process can be complex, and that’s where legal guidance becomes invaluable.

Need Legal Help to Negotiate a Franchise Agreement?

At Rotstein Commercial Lawyers, we understand the intricacies of Australian franchise law and are committed to protecting your interests. Whether you’re reviewing an agreement, seeking to negotiate better terms or preparing to sign, our experienced legal team can provide tailored advice every step of the way.

Ensure your franchise journey starts on solid legal ground—partner with Rotstein Commercial Lawyers today. Call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation.

Your intellectual property—whether it’s a brand, invention or creative work—is worth protecting, and the right IP lawyer can make all the difference. From trademarks and patents to copyrights and trade secrets, securing legal expertise ensures your ideas stay yours. But with so many lawyers out there, how do you find the right one? What are the things to know before hiring an IP lawyer?

Before making a decision, consider key factors like their expertise in specific IP areas, industry experience, track record, legal approach, fees and communication style. This guide will walk you through what to look for so you can hire an IP lawyer who truly has your back.

A Quick Overview: Things to Consider Before Hiring an IP Lawyer

Choosing the right IP lawyer can make a significant difference in safeguarding your intellectual property. Here’s a quick rundown of what to consider before making your decision:

• Expertise in Specific IP Areas: Ensure the lawyer specialises in patents, trademarks, copyrights or trade secrets, depending on your needs.
• Industry Experience: Look for lawyers with experience in your industry, whether it’s technology, fashion or entertainment.
• Track Record & Reputation: Check client testimonials, case studies and success rates.
• Legal Strategy & Approach: A strong IP lawyer will provide proactive solutions rather than reactive responses.
• Cost & Billing Structure: Understand their pricing—hourly rates, flat fees or retainer models.
• Communication & Availability: Choose a lawyer who is responsive and keeps you informed throughout the legal process.

Now, let’s explore each of these points in detail.

1. Knowing the Expertise of an IP Lawyer

Not all IP lawyers handle the same types of cases. Some focus on patents, while others specialise in trademark registration or copyright enforcement. Before hiring a lawyer, make sure their expertise aligns with your specific needs.

Types of Intellectual Property an IP Lawyer Can Handle:

• Patents: Protecting inventions and innovative products.
• Trademarks: Securing brand names, logos and symbols.
• Copyrights: Protecting creative works like books, films and music.
• Trade Secrets: Safeguarding confidential business information.
• IP Litigation: Representing clients in disputes related to infringement or misappropriation.

If you need a patent lawyer, ensure they are registered with IP Australia to file patents legally.

2. Industry Experience Matters

Each industry has unique intellectual property challenges. A tech startup may require a lawyer with experience in software patents, while a fashion brand needs one skilled in trademark enforcement.

Why Industry Experience is Important:

• Tech & Software: Expertise in licensing agreements, patent protection and copyright for software.
• Entertainment & Media: Knowledge of copyright law for films, music and digital content.
• E-commerce & Branding: Strong understanding of trademark registration and brand protection.

Hiring an IP lawyer with experience in your field ensures that they can anticipate potential challenges and provide tailored solutions.

3. Evaluating Track Record & Reputation

Before hiring an IP lawyer, research their success rate, client feedback and case studies.

How to Assess an IP Lawyer’s Reputation:

• Read client testimonials on their website or third-party platforms.
• Check if they have handled high-profile cases or similar disputes.
• Look at their success rate in IP litigation or trademark approvals.

A reputable lawyer should have a proven history of successfully protecting and enforcing intellectual property rights.

4. Legal Strategy & Approach

A strong IP lawyer doesn’t just react to problems—they help you build a proactive strategy to protect your IP long-term.

Questions to Ask About Their Legal Approach:

• How do they prevent potential IP infringement before it happens?
• Do they offer risk assessment for trademarks, patents or copyrights?
• What strategies do they use to enforce and defend your IP rights?

A forward-thinking lawyer will help you avoid costly legal disputes before they arise.

5. Understanding Cost & Billing Structure

Legal fees vary depending on the complexity of your case. Before hiring an IP lawyer, understand their billing structure to avoid unexpected costs.

Common Fee Structures for IP Lawyers:

• Hourly Rate: Best for complex cases that require ongoing legal work.
• Flat Fee: Ideal for trademark registration or patent filings.
• Retainer Model: Suitable for businesses needing continuous IP legal services.

Ask for a detailed cost estimate upfront to ensure transparency.

6. Communication & Availability

You need an IP lawyer who is accessible, responsive and proactive in keeping you updated.

What to Look for in Communication:

• Do they respond promptly to emails and calls?
• Are they clear and transparent about your case’s progress?
• Do they provide regular updates without needing constant follow-ups?

Clear communication ensures a smooth legal process and helps you stay informed every step of the way.

Wrapping Up

Choosing an IP lawyer requires careful consideration. By evaluating their expertise, industry experience, reputation, legal strategy, fees and communication style, you can find the right professional to protect your intellectual property effectively.

For expert legal assistance in intellectual property law, contact Rotstein Commercial Lawyers today. Let us help you secure and enforce your IP rights with confidence.

Get Expert Legal Support Today

At Rotstein Commercial Lawyers, we understand that protecting your intellectual property is critical to your success. Whether you need assistance with trademark registration, patent filing, copyright protection or IP litigation, our experienced team is here to help. We offer tailored legal solutions to protect your intellectual property rights and ensure your brand, innovation and creative assets remain secure.

Call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Secure your intellectual property with expert legal guidance today!

Protecting intellectual property (IP) is essential for safeguarding creative and innovative assets, but knowing which legal expert to consult can be tricky. Should you hire an IP lawyer vs patent lawyer?

IP lawyers handle trademarks, copyrights, trade secrets and IP disputes, while patent lawyers focus on filing patents and protecting inventions. Choosing the right one ensures proper legal protection.

This guide breaks down their roles, responsibilities and when to seek their expertise.

A Quick Overview: IP Lawyer vs Patent Lawyer

Both IP lawyers and patent lawyers protect intellectual property, but they focus on different areas:

• IP Lawyers handle trademarks, copyrights, trade secrets, contracts and general IP disputes.
• Patent Lawyers specialise in patents, including filing applications, litigation and protecting inventions.

Depending on your needs, you may require one or both. Knowing the difference helps ensure your creative assets get the right legal protection.

What Does an IP Lawyer Do?

An IP lawyer provides legal counsel on various intellectual property matters, ensuring businesses and individuals protect their creative works, branding and trade secrets.

Key Responsibilities of an IP Lawyer:

1. Trademark Registration & Protection: IP lawyers assist in registering trademarks and enforcing trademark rights.
2. Copyright Law & Licensing: They handle copyright registrations, disputes and licensing agreements.
3. Trade Secret Protection: They help businesses safeguard confidential information through legal frameworks.
4. Intellectual Property Contracts: IP lawyers draft licensing agreements, non-disclosure agreements (NDAs) and assignment contracts.
5. IP Litigation & Enforcement: They handle intellectual property disputes, infringement cases and brand protection.

An IP lawyer is essential for individuals and businesses looking to protect their brand identity, creative works and confidential business information.

What Does a Patent Lawyer Do?

A patent lawyer focuses on the legal protection of inventions and innovative technologies through patents. They ensure that inventors and businesses secure exclusive rights to their inventions.

Key Responsibilities of a Patent Lawyer:

1. Patent Application & Filing: Patent lawyers draft and submit patent applications to protect inventions.
2. Patent Prosecution: They work with patent offices to secure approvals for patent applications.
3. Patent Litigation: They represent clients in disputes over patent infringement.
4. Patent Portfolio Management: They help businesses develop and maintain a strong portfolio of patents.
5. Patentability Searches & Opinions: They assess whether an invention is patentable before filing an application.

A patent lawyer is crucial for inventors, tech companies and businesses looking to protect innovations and prevent competitors from using their patented technology.

When Do You Need an IP Lawyer vs a Patent Lawyer?

Knowing when to hire the right lawyer ensures your intellectual property is properly secured and enforced.

You Need an IP Lawyer If:

• You want to register and protect a trademark or copyright.
• You need contracts, licensing agreements or NDAs for intellectual property.
• You’re facing an intellectual property infringement dispute.
• You want to safeguard trade secrets and confidential business information.

You Need a Patent Lawyer If:

• You have an invention that needs patent protection.
• You need assistance with filing a patent application.
• You’re facing a patent infringement lawsuit.
• You want to manage and protect a patent portfolio.

IP Lawyer vs Patent Lawyer: Key Differences

While both protect intellectual property, they focus on different aspects:

• IP Lawyers handle trademarks, copyrights, trade secrets and IP disputes. Their key services include:
  • Brand protection
  • Licensing agreements
  • Copyright enforcement
• Patent Lawyers specialise in patent law, focusing on:
  • Filing and securing patents
  • Patent litigation
  • Protecting inventions
• When to Hire:
  • Choose an IP lawyer for branding, creative works or intellectual property contracts.
  • Choose a patent lawyer when filing or defending patents for inventions.
• Legal Compliance:
  • IP lawyers navigate trademark and copyright laws.
  • Patent lawyers ensure adherence to patent law and IP Australia regulations.

Depending on the situation, businesses or individuals may need both for full legal protection.

Final Thoughts

Both IP lawyers and patent lawyers play crucial roles in intellectual property protection. While IP lawyers specialise in trademark, copyright and trade secret protection, patent lawyers focus on invention and patent law. Understanding their differences ensures you receive the right legal support when needed.

For expert legal guidance in intellectual property and patent law, contact Rotstein Commercial Lawyers today. Let our team help safeguard your innovations and creative assets.

Get Expert Legal Support Today

Choosing the right legal support can make a significant difference in protecting your intellectual property. At Rotstein Commercial Lawyers, we offer expert legal guidance in intellectual property and patent law. Whether you need assistance with trademark registration, copyright protection, patent applications or IP disputes, we provide tailored solutions to help you secure your creative assets.

Call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Protect your intellectual property with expert legal support today!

A family trust is a powerful legal structure designed to protect assets, manage wealth and distribute income among family members in a tax-efficient way. Knowing how to set up a family trust in Australia requires careful planning and legal compliance to ensure it meets your objectives. 

Some of its key steps include choosing trustees and beneficiaries. It also involves drafting, settling and registering the trust, as well as opening a bank account for the trust.

In this guide, we’ll walk you through the steps to set up a family trust, explain its benefits and highlight the key considerations involved. Whether you’re looking to safeguard your family’s financial future or manage assets effectively, this article provides the insights you need.

A Quick Overview: How to Set Up a Family Trust

Setting up a family trust can help you manage your assets and provide for your loved ones. It’s important to understand the steps involved to ensure everything is set up correctly. Here’s an overview of the process to guide you through:

1. Choose a Trustee: Decide who will manage the trust and act in the best interests of the beneficiaries.
2. Draft a Trust Deed: Create the legal document that outlines the terms and conditions of the trust.
3. Appoint Beneficiaries: Specify who will benefit from the trust’s income and assets.
4. Settle the Trust: Transfer a nominal amount (known as the ‘settlement sum’) to establish the trust.
5. Register the Trust: Apply for a Tax File Number (TFN) and Australian Business Number (ABN), if required.
6. Open a Bank Account: Set up a dedicated bank account for trust transactions.

What is a Family Trust?

A family trust is a legal arrangement where assets are held and managed by a trustee for the benefit of family members. It’s a powerful tool for managing wealth and protecting assets. It provides:

• Asset Protection: Safeguards assets from creditors and legal disputes.
• Tax Benefits: Allows income distribution to family members on lower tax rates.
• Wealth Management: Facilitates efficient management and transfer of wealth across generations.

Step-by-Step Guide to Setting Up a Family Trust

Setting up a family trust involves several steps, from drafting a trust deed to transferring assets. It’s important to get each step right to ensure the trust functions as intended. 

1. Choose a Trustee

The trustee is responsible for managing the trust’s assets and ensuring compliance with the trust deed. Trustees can be individuals or a corporate entity. Key considerations include:

• Trustee’s Role: Administer the trust, manage assets and distribute income.
• Corporate Trustee Option: Provides limited liability and continuity.

2. Draft a Trust Deed

The trust deed is a legal document that establishes the trust and outlines its terms. It should include:

• Purpose of the trust.
• Powers and duties of the trustee.
• Rights of the beneficiaries.
• Rules for distributing income and assets.

Engaging a lawyer ensures the trust deed is legally sound and tailored to your needs.

3. Appoint Beneficiaries

Beneficiaries are the individuals or entities entitled to benefit from the trust. Types of beneficiaries include:

• Primary Beneficiaries: Immediate family members.
• Secondary Beneficiaries: Extended family or other entities, such as companies or charities.

The trust deed should clearly define who the beneficiaries are.

4. Settle the Trust

To establish the trust, a settler (an independent third party) transfers a nominal amount, known as the settlement sum, to the trustee. The settler’s role is limited to initiating the trust, and they cannot be a beneficiary.

5. Register the Trust

To comply with Australian tax laws, the trust must be registered with the Australian Taxation Office (ATO). Steps include:

• Applying for a Tax File Number (TFN).
• Registering for an Australian Business Number (ABN) if the trust operates a business.

6. Open a Bank Account

Set up a dedicated bank account in the trust’s name for all transactions. This ensures financial transparency and compliance.

Benefits of Having a Family Trust

A family trust offers numerous benefits. The following reasons tell you why setting up a family trust might be the right choice for you:

1. Asset Protection

A family trust protects assets from creditors, bankruptcy and legal disputes, ensuring long-term financial security.

2. Tax Planning

Income can be distributed among beneficiaries, often resulting in significant tax savings by leveraging lower marginal tax rates.

3. Wealth Transfer

Family trusts facilitate seamless transfer of wealth to future generations, minimising disputes and delays.

4. Flexibility

The discretionary nature of family trusts allows trustees to adapt to changing financial and family circumstances.

Key Considerations When Setting Up a Family Trust

Before setting up a family trust, there are a few things you need to consider to ensure it fits your needs. Here are the key points to keep in mind:

1. Legal Compliance

Ensure the trust deed complies with Australian laws and is updated as needed to reflect legislative changes.

2. Costs

Establishing a family trust involves setup fees, legal costs and ongoing administrative expenses. Budget accordingly.

3. Trustee Responsibilities

Trustees have a fiduciary duty to act in the best interests of beneficiaries. Non-compliance can result in legal penalties.

4. Tax Implications

Understand the tax obligations associated with family trusts, including distribution of income and potential tax liabilities for beneficiaries.

Common Questions About Family Trusts

1. How Long Does a Family Trust Last?

In most states, family trusts have a maximum duration of 80 years.

2. Can a Family Trust Be Amended?

Yes, but amendments must comply with the trust deed and relevant laws.

3. Is a Family Trust Suitable for Everyone?

Family trusts are ideal for asset protection and wealth management, but their suitability depends on your financial goals and circumstances.

Get Expert Guidance on Family Trusts with Rotstein Commercial Lawyers

Setting up a family trust in Australia requires expert legal advice to ensure it’s tailored to your needs and complies with all legal requirements. At Rotstein Commercial Lawyers, we specialise in drafting trust deeds, providing guidance on trustee obligations and helping clients achieve their asset protection and wealth management goals.

For professional advice on establishing a family trust, call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Let us help you secure your family’s financial future.

Final Thoughts

Setting up a family trust in Australia is a strategic way to protect assets, manage wealth and ensure financial stability for future generations. By following the steps outlined in this guide and seeking expert legal advice, you can create a trust that meets your family’s unique needs. 

Contact Rotstein Commercial Lawyers today to get started.

A trust deed can be an important tool for managing your assets, but many people aren’t sure exactly how it works or why it’s important. So, what is a trust deed and how does it work?

Essentially, a trust deed is a legal document that outlines how a trust is set up and how its assets are handled. Understanding it can help you take control of your wealth and ensure your wishes are honoured. 

In this article, we’ll explore what a trust deed is, its key components and how it operates to provide legal and financial security.

A Quick Overview: What Is a Trust Deed & How Does It Work?

A trust deed is a written agreement that creates a trust and governs its operation. It:

• Specifies the roles of the trustee, beneficiary and settlor.
• Defines the purpose and terms of the trust.
• Details how assets are to be managed, distributed, and protected.

Whether for asset protection, tax planning or estate management, trust deeds are a cornerstone of effective financial structuring.

Key Components of a Trust Deed

Knowing the key components of a trust deed is essential for setting up a trust that works for you. Here are the main elements of a trust deed:

1. The Parties Involved

A trust deed outlines the roles and responsibilities of the following parties:

• Settler: The individual who creates the trust by transferring assets.
• Trustee: The person or entity responsible for managing the trust’s assets according to the deed’s terms.
• Beneficiaries: Individuals or entities entitled to benefit from the trust’s assets or income.

2. Purpose of the Trust

The trust deed defines the objectives of the trust, such as:

• Asset protection.
• Providing for family members.
• Distributing income for tax efficiency.
• Safeguarding business assets.

3. Terms and Conditions

The deed includes specific terms governing:

• How assets are managed and invested.
• When and how distributions are made to beneficiaries.
• Procedures for replacing trustees or amending the deed.

4. Legal Framework

Trust deeds must comply with Australian trust laws, including:

• State and territory laws governing trust structures.
• Taxation laws relevant to income distribution and asset management.

How Does a Trust Deed Work?

A trust deed sets the framework for how a trust operates, including how the trustee manages the assets on behalf of beneficiaries. Below is a simple explanation of how a trust deed functions in practice:

1. Establishing the Trust

To create a trust, the settler:

• Transfers assets into the trust.
• Appoints a trustee to manage those assets.
• Specifies beneficiaries who will benefit from the trust.

The trust deed formalises these arrangements, making the trust a legal entity.

2. Role of the Trustee

The trustee has a fiduciary duty to:

• Act in the best interests of the beneficiaries.
• Manage assets according to the trust deed.
• Maintain accurate records and prepare financial statements.

3. Asset Management and Distribution

The trust deed governs how:

• Assets are invested to generate income or growth.
• Distributions are made to beneficiaries, either regularly or at the trustee’s discretion.
• Decisions are made in line with the trust’s purpose and terms.

4. Amending the Deed

Trust deeds can be amended under certain circumstances, such as:

• Adding or removing beneficiaries.
• Changing trustees.
• Updating terms to reflect legal or financial changes.

Types of Trusts in Australia

There are several types of trusts, each serving different purposes and offering unique benefits. Knowing which type of trust suits your situation can help you make the most of your assets. The most common types of trusts in Australia are:

1. Family Trusts

Used for asset protection and tax efficiency, family trusts distribute income among family members, often at lower tax rates.

2. Discretionary Trusts

These provide flexibility in distributing income and capital to beneficiaries as determined by the trustee.

3. Unit Trusts

Commonly used in business arrangements, unit trusts allocate income and capital based on the number of units held by beneficiaries.

4. Testamentary Trusts

Created through a will, testamentary trusts distribute assets to beneficiaries after the settlor’s death, often with tax advantages.

Benefits of Having a Trust Deed

A trust deed offers several advantages, from asset protection to tax benefits. Whether you’re planning for the future or managing your wealth, a trust deed can provide valuable benefits. Here’s why a trust deed might be a good choice:

1. Asset Protection

Trust deeds shield assets from creditors and legal disputes, offering financial security for beneficiaries.

2. Tax Efficiency

By distributing income among beneficiaries, trusts can reduce overall tax liabilities.

3. Succession Planning

Trust deeds ensure seamless transfer of wealth to future generations, minimising disputes.

4. Flexibility

Trusts can be tailored to meet specific financial, legal, or family needs.

Common Questions About Trust Deeds

1. Can a Trust Deed Be Changed?

Yes, trust deeds can be amended, but the process must comply with the terms of the deed and relevant laws.

2. Do Trusts Pay Tax in Australia?

Trusts don’t pay tax directly; instead, beneficiaries are taxed on their share of the trust’s income.

3. How Long Does a Trust Last?

In most cases, trusts have a maximum duration of 80 years under Australian law.

Why You Need Professional Advice

Establishing and managing a trust requires expert legal guidance to ensure compliance with Australian laws and alignment with your financial goals. Mistakes in drafting or managing a trust deed can lead to costly disputes or tax issues.

Secure Your Trust Deed with Rotstein Commercial Lawyers

Establishing and maintaining a trust is a significant decision, and having a well-drafted trust deed is essential. At Rotstein Commercial Lawyers, we specialise in creating customised trust deeds that align with your needs and goals. Whether you’re establishing a family trust, business trust or testamentary trust, our experienced team is here to help.

For expert advice on trust deeds, call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Let us guide you through the complexities of trusts and ensure your assets are protected.

Final Thoughts

A trust deed is more than just a legal document; it’s a powerful tool for managing and protecting your wealth. By understanding what a trust deed is and how it works, you can make informed decisions about your financial future. 

Contact Rotstein Commercial Lawyers today for professional assistance in establishing and managing your trust.

Capital Gains Tax (CGT) might not be the first thing on your mind when selling an asset, but it can significantly impact your profits. So, what is capital gains tax in Australia?

In Australia, CGT is a tax on the profit you make when you sell an asset—such as property, shares or a business—for more than you paid for it. It forms part of your income tax and applies to both individuals and businesses. Understanding how CGT works is crucial for managing your tax obligations effectively and making informed financial decisions.

In this article, we’ll explain what capital gains tax is, how it applies to different asset types and strategies to minimise your CGT liability.

A Quick Overview: What is Capital Gains Tax in Australia?

CGT is a tax on the profit you earn when you sell an asset, like property, shares or a business, for more than its purchase price.It is calculated based on the profit made from selling a taxable asset. Key points include:

• Taxable Assets: These include property, shares and collectables exceeding $500 in value.
• Exemptions: Main residence and personal use items are generally exempt.
• How It’s Calculated: Profit is added to your taxable income and taxed at your marginal rate.
• Discounts: Individuals and certain trusts may qualify for a 50% CGT discount if the asset is held for more than 12 months.

How Does Capital Gains Tax Work?

Knowing how CGT works is key to managing your finances. Here’s a simple breakdown of how CGT applies:

1. What Assets Are Taxable?

CGT applies to most assets, including:

• Real Estate: Investment properties and vacant land.
• Shares: Profits from selling shares or units in a managed fund.
• Collectibles: Items like art or jewellery valued over $500.
• Business Assets: Includes goodwill and intellectual property.

2. What Assets Are Exempt?

Some assets are exempt from CGT, including:

• Your primary place of residence (main residence exemption).
• Personal use assets under $10,000 (e.g., cars, boats).
• Assets acquired before 20 September 1985 (pre-CGT assets).

3. How is CGT Calculated?

CGT is calculated as follows:

• Determine your capital gain: Subtract the asset’s cost base (purchase price plus associated expenses) from the sale price.
• Add the capital gain to your taxable income.
• Apply your marginal tax rate to the total taxable income.

For example: If you sell an investment property for $800,000 and its cost base is $600,000, your capital gain is $200,000. If you’re eligible for a 50% discount, the taxable gain is reduced to $100,000.

Who Pays Capital Gains Tax in Australia?

CGT doesn’t just apply to big investors. It can affect anyone who sells certain assets. Below are the groups that typically pay this tax:

• Individuals: Residents pay CGT on worldwide assets, while non-residents pay CGT only on Australian taxable property.
• Companies: Pay CGT at the corporate tax rate, with no eligibility for discounts.
• Trusts: CGT is passed through to beneficiaries.
• Superannuation Funds: Pay a reduced CGT rate of 15% on gains.

Strategies to Minimise Capital Gains Tax

There are ways to reduce the amount of CGT you owe, and smart planning can make a big difference. Some common strategies to help minimise your tax liability are:

1. Use the Main Residence Exemption

If you sell your primary place of residence, you can claim the main residence exemption, avoiding CGT on the property.

2. Hold Assets for Over 12 Months

Individuals and trusts can reduce their taxable gain by 50% if they hold the asset for more than 12 months before selling.

3. Offset Capital Losses

Capital losses from other asset sales can be used to offset capital gains, reducing your overall tax liability.

4. Timing of Sales

Strategically timing your asset sales to fall in a financial year with lower taxable income can reduce the CGT payable.

5. Contribute to Superannuation

You can use some of the proceeds from selling an asset to make tax-deductible superannuation contributions, which may reduce your taxable income.

Common Scenarios Involving CGT

CGT can apply in a variety of situations, from selling property to selling shares. Below are some common situations where CGT comes into play:

Selling an Investment Property

When selling an investment property, CGT is based on the difference between the sale price and the cost base, which includes purchase price, stamp duty, legal fees and capital improvement costs.

Inheriting Property

Inherited property may be subject to CGT if sold. The cost base depends on whether the deceased acquired the property before or after 20 September 1985.

Selling Shares

Shareholders must calculate CGT on the sale of shares, considering brokerage fees as part of the cost base.

Common Questions About Capital Gains Tax

1. Is CGT Payable When Transferring Assets to Family?

Yes, CGT may apply unless exemptions (such as spousal transfers) are available.

2. Are Gifts Subject to CGT?

Yes, gifting an asset is treated as a sale at market value for CGT purposes.

3. Can I Defer CGT?

In certain cases, such as rollovers for small business owners, CGT can be deferred.

Get Expert Guidance on Capital Gains Tax with Rotstein Commercial Lawyers

Capital gains tax in Australia can be challenging, but expert legal advice can guide you through it. At Rotstein Commercial Lawyers, we offer tailored guidance to help you manage your CGT obligations and minimise your liability. Whether you’re selling an investment property or planning your estate, we’re here to assist.

For expert advice on CGT, call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Let us help you navigate the complexities of capital gains tax and achieve the best outcomes for your financial situation.

Final Thoughts

Capital gains tax (CGT) in Australia plays a vital role in managing your financial obligations. Knowing which assets are taxable, how CGT is calculated and strategies to minimise your liability allows you to make informed decisions and safeguard your financial interests.

Contact Rotstein Commercial Lawyers today for expert assistance in navigating CGT and other legal matters.

Employment law in Australia is a complex and structured system designed to protect the rights of both employers and employees. An understanding of the primary sources of workplace law is critical for anyone dealing with legal matters, such as disputes, contracts or compliance.

So what are the three main sources of employment law in Australia? They are legislation, case law and industrial instruments. This article provides an in-depth look at each source, how they interact and their relevance in the workplace.

A Quick Overview: Three Main Sources of Employment Law in Australia

Employment law in Australia is shaped by various sources that work together to protect the rights of workers and employers. To help you understand how these laws come into play, here’s a quick breakdown of the three main sources:

1. Legislation: Governs employment rights and obligations under the Fair Work Act 2009, anti-discrimination laws and workplace safety regulations.
2. Case Law: Influences employment practices through court rulings and legal precedents.
3. Industrial Instruments: Regulates wages, working conditions and entitlements through awards and agreements.

Source 1: Legislation

What is Legislation?

Legislation refers to laws passed by federal and state parliaments that govern employment rights, duties and workplace relations. It forms the backbone of Australian employment law.

Key Pieces of Legislation

1. Fair Work Act 2009: This is the cornerstone of Australian employment law. It establishes the National Employment Standards (NES), modern awards and the framework for enterprise agreements and dispute resolution.
2. Anti-Discrimination Laws: These include the Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Disability Discrimination Act 1992, ensuring equal treatment in the workplace.
3. Work Health and Safety Laws: Governed by the Work Health and Safety Act 2011, these laws keep working conditions safe.
4. State Legislation: State laws complement federal laws, particularly in areas not covered by the Fair Work Act, such as public sector employment in some states.

Why Legislation Matters

Legislation provides clarity and consistency in employment relationships. It defines rights and obligations, protects employees from exploitation and guides employers in creating compliant workplaces.

Source 2: Case Law

What is Case Law?

Case law refers to the body of legal principles established through court decisions. It interprets and applies legislation to specific cases, creating precedents that influence future rulings.

How Case Law Shapes Employment Practices

1. Unfair Dismissal Claims: Court rulings clarify what constitutes unfair dismissal, which guides employers on termination practices.
2. Discrimination Cases: Decisions in discrimination cases set standards for workplace inclusivity and equal opportunity.
3. Workplace Disputes: Case law helps resolve grey areas in legislation, such as disputes over entitlements or contract terms.

Examples of Influential Cases

• High-profile decisions from the Fair Work Commission and Federal Court shape how laws like the Fair Work Act are interpreted.
• Cases addressing the gig economy, such as rulings on whether gig workers are employees or contractors, have significant implications for Australian workplaces.

Source 3: Industrial Instruments

What Are Industrial Instruments?

Industrial instruments include modern awards, enterprise agreements and other binding arrangements that regulate employment terms for specific industries or organisations.

Key Components

1. Modern Awards: Set minimum wages and conditions for employees in specific industries or occupations. Examples include the Hospitality Industry (General) Award and Retail Award.
2. Enterprise Agreements: Negotiated agreements between employers and employees that offer terms and conditions tailored to the workplace, often exceeding award standards.
3. Other Agreements: Individual flexibility agreements or other arrangements that provide customised conditions.

Importance of Industrial Instruments

Industrial instruments ensure:

• Fair remuneration and working conditions.
• Tailored terms that meet the unique needs of specific workplaces.
• Legal protections for both employers and employees.

How These Sources Interact

The three sources of employment law work together to create a comprehensive legal framework:

• Legislation provides the foundation.
• Case law interprets and refines these laws through judicial decisions.
• Industrial instruments offer specific, enforceable conditions that apply to industries or organisations.

Employers and employees must understand how these sources overlap to avoid conflicts and ensure compliance.

Why Understanding Employment Law Sources Matters

Knowing where employment laws come from is key to navigating your rights and responsibilities at work. It can help you stay informed and make better decisions, whether you’re an employee or employer. Here’s why it’s important to understand these sources:

For Employees:

• Know your rights under the law, including entitlements and workplace protections.
• Seek recourse if your employer violates employment laws or agreements.

For Employers:

• Ensure compliance with all legal obligations to avoid penalties.
• Implement workplace policies that align with legislation, case law, and industrial instruments.

Common Questions About Employment Law Sources

1. What Happens When Laws Conflict with Industrial Instruments?

When conflicts arise, the law that provides the most benefit to the employee typically prevails. For example, if an enterprise agreement provides better conditions than an award, the agreement takes precedence.

2. Can Employees Negotiate Beyond Industrial Instruments?

Yes, employees and employers can negotiate terms through individual agreements, provided they meet or exceed the minimum standards set by industrial instruments and legislation.

3. How Can Employers Stay Compliant?

Regularly review workplace policies, seek legal advice and conduct audits to ensure compliance with all three sources of employment law.

Get Expert Guidance from Rotstein Commercial Lawyers

Handling the complexities of employment law in Australia requires expert advice. At Rotstein Commercial Lawyers, we specialise in helping businesses and employees understand and comply with employment laws. From drafting agreements to resolving disputes, our experienced team is here to support you.

For tailored legal advice, call us on +61 3 9604 7888 or visit our Contact Us page to schedule a consultation. Let us provide the clarity and expertise you need to navigate Australia’s employment law framework.

Final Thoughts

Compliance with employment law in Australia requires an understanding of its three main sources—legislation, case law and industrial instruments—to foster fair workplaces. Whether you’re an employer or employee, having a clear grasp of these sources ensures you can uphold your rights and responsibilities effectively. 

Contact Rotstein Commercial Lawyers today for comprehensive legal support.