There is potentially a long list of what comprises the assets of a business. One of these is likely to be a business’ intellectual property. It is very important that all intellectual property of a business is included in any inventory attached to the relevant contract. The below need to be considered when determining what intellectual property the relevant business has.

This refers to the name under which a business is conducted.

The relevant legislation is as follows:

Up until 28 May 2012, each of the states and territories had a Business Names Act. However, they have all been replaced by the federal system.

Since 28 May 2012, there has been a new single federal system to cover the registration of business names throughout Australia. The registration and transfer of business names is now entirely covered by the Business Names Registration Act 2011 (Cth).

Unlike a trade mark, a business name registration is not an item of property but rather a government regulatory license. A business name registration cannot be bought and sold. The only way of transferring a business name is for it to be transferred to a new person or company who will be running a business under that name (see ASIC — How to transfer a business name).

A business may be conducted under the proprietor's own name. Accordingly, where a business is conducted by a company, it can be run in the company's complete name (ie with “Ltd” or “Pty Ltd” included) without registering a separate business name s 18, Business Names Registration Act 2011 (Cth) .

Company names are governed by Pt 2B.6 of the Corporations Act 2001 (Cth), and r 2B.6.01 and Sch 6 of the Corporations Regulations 2001 (Cth). These allow extremely similar company names to be registered. This is based on the idea that companies are required to show their Australia Company Numbers (ACN) or Australia Business Numbers (ABN) on almost all documents, and that these distinguish between different companies with nearly identical names. Although company names cannot be literally sold, they can be transferred as follows:

• a vendor registering a business name which is the same as the company name, without “Pty Limited”, and transferring that business name on settlement.

• the vendor changing its name to enable the purchaser to adopt that name on settlement; or

• the purchaser registering an almost identical company name.

Use of similar company or business names (though not items of property) may contravene general law protections in certain circumstances (eg amount to misleading or deceptive conduct or the tort of passing off).

See Business names.

A trade mark is a name and/or sign to distinguish goods and services and is an item of property. Trade marks are registered under the Trade Marks Act 1995 (Cth), and the registration is administered by IP Australia, a Commonwealth Government authority. Unregistered trade marks are given some protection by the general law.

Each trade mark is registered in one or more classes, and the benefits of registering a trade mark only applies to goods and services in those classes.

Trade marks can be assigned simply, under s 106 of the Trade Marks Act 1995 (Cth).

These cover the unique shape and appearance of original products. They are subject to the Designs Act 2003 (Cth). A search of registered designs may be carried out at IP Australia or via its website.

Assigning a registered design requires only a simple assignment, completion of a form and lodgment with IP Australia or via its website. See s 11 of the Designs Act 2003 (Cth).

A patent is how a product works. Registrations are covered by the Patents Act 1990 (Cth) and, again, this is administered by IP Australia.

Patent registrations are highly technical. A solicitor acting for a purchaser of a business which includes patents should obtain specialist advice from a patent attorney.

Patents may be assigned to another party by lodging a request to amend ownership form through IP Australia. See s 14 of the Patents Act 1990 (Cth).

Passwords are an important part of running almost any business. Businesses may also have dongles, which are the electronic equivalent to a key, to operate part of their computer system. A purchaser’s solicitor should require these to be handed over on settlement.

Information, such as client lists, may be a valuable part of a business. Confidential information is often described as intellectual property. However, it is not property at all.

The only way for a vendor of a business to “sell” confidential information is to provide it, together with covenants not to use or disclose it to any third party.

See Trade marks and other intellectual property.

Information technology, or IT, is the term for computers and everything that allows them to function, including computer hardware and software. The term also encompasses web sites.

Most businesses rely on computer software to function. Accordingly, in acting for a purchaser of a business, it is important to secure the legal rights to use, adapt and maintain the software used in the business.

The main legal right associated with software is copyright. This is covered by the Copyright Act 1968 (Cth).

When purchasing a business, including the copyright to software, issues can arise, including the following.

• ownership and sale of copyright;

• software licence terms;

• software support; and

• software patents.

A website is often a core component of a value of a business. To secure for the purchaser all of the relevant legal rights to use a website of a business, the purchaser’s solicitor should give attention to the following:

• domain names;

• web hosting;

• website software; and

• text images and other materials (eg audiovisual) displayed on the website.

See Information technology.

There are taxation considerations in relation to intellectual property for both the purchaser and vendor when purchasing or selling a business and the practitioner must be aware of this. For example, the location of the intellectual property may impact on the amount of duty payable.

See Tax factors.