Who Really Owns Your Trade Mark? Lessons from Black Star Pastry v Richards - Ep 22

Episode Summary

You can build a strong brand, file a trade mark… and still not legally own it.

In this episode of Elise Explains IP, Elise unpacks the recent Federal Court decision in Black Star Pastry Pty Ltd v Richards (No 2) [2026] FCA 383 — and why it highlights one of the most critical (and commonly misunderstood) issues in trade mark law:

Ownership at the time of filing

With a particular focus on the “Blackstar Coffee” trade mark, this episode explores what happens when a mark is filed in the name of one individual, despite being used in a broader business involving multiple parties.

The takeaway is simple — but often overlooked:

It’s not enough to file a trade mark. It needs to be filed in the right name.

What You’ll Learn

  • Why trade mark ownership is determined at the time of filing
  • What “true owner” actually means in practice
  • Why filing in the wrong name can invalidate your trade mark
  • The risks of founders registering trade marks personally
  • How shared ventures and partnerships create ownership complications
  • Why the “Blackstar Coffee” issue is a common real-world mistake
  • How misaligned ownership can affect sale, licensing, and investment

Key Case Insight: Black Star Coffee

This case highlights a familiar scenario:

  • A trade mark is filed by one of two business participants
  • The brand is actually used in a shared business context
  • No clear agreement exists around ownership

The result?

👉 A disconnect between legal ownership (on the register) and commercial reality (how the brand operates)

This creates uncertainty, risk, and potential disputes — particularly if relationships change.

Why This Matters for Business Owners

Getting trade mark ownership wrong can lead to:

  • Invalid or vulnerable registrations
  • Inability to enforce your rights
  • Disputes between founders or partners
  • Problems during due diligence or business sale
  • Misalignment between your IP and your business structure

In practical terms:

Your business may not actually own its most valuable asset — its brand

Practical Takeaways

If you’re filing (or have filed) a trade mark, consider:

1. Who should own the trade mark?

  • Is it a personal brand or a business asset?
  • Will the business grow, take on investors, or be sold?

In most cases, the company should own the trade mark.

2. Does ownership match how the brand is used?

The entity that controls and commercialises the brand should typically be the registered owner.

3. Are multiple people involved?

If yes:

  • Don’t default to one name on the application
  • Document ownership clearly before filing

4. Have you taken shortcuts?

Quick or DIY filings often lead to ownership issues later.

5. Is your IP aligned with your broader structure?

Trade marks should sit within your:

  • Business structure
  • Asset protection strategy
  • Long-term exit planning

Key Message

If the wrong entity files the trade mark, you may never have had a valid registration to begin with.

Need Help?

If you’re unsure whether your trade marks are owned by the right entity — or you’re setting things up properly from the start — it’s worth getting clarity early.

Case Reference

Black Star Pastry Pty Ltd v Richards (No 2) [2026] FCA 383

Share This Episode

If you know a founder, creative, or advisor who’s building a brand — this is an important one to share.

Because most trade mark issues don’t come from failing to file…

They come from filing in the wrong name.