Mandatory Merger Control Is Here: How Australia's New Law Affects Your IP Transactions

Here's something that might surprise you: if you're acquiring a trade mark, licensing a patent, or entering a franchise agreement in Australia, you might now need approval from the government before you can complete the deal.

This isn't hypothetical. Since 1 January 2026, Australia has a mandatory merger control regime that applies to a wide range of transactions — including many that involve intellectual property.

And the penalties for getting it wrong are significant.

Let's walk through exactly what this means for your business, in plain English.

What Is Merger Control?

Merger control is a system where businesses must get regulatory approval before completing certain acquisitions. It's designed to prevent mergers and acquisitions that would reduce competition and harm consumers.

Think of it like this: if two big companies merge, they might become so powerful that they can raise prices, reduce quality, or stifle innovation. Merger control gives regulators a chance to review the deal before it happens and stop it if it's a problem.

Australia's Old System: Voluntary

Before 2026, Australia had no mandatory merger notification system. Companies could complete acquisitions without telling anyone. The competition regulator (the ACCC) could investigate after the fact, but they couldn't stop a deal that had already been completed.

This was widely seen as a weakness. Other countries — the US, UK, EU, Canada, and many others — all have mandatory systems. Australia was the odd one out.

Australia's New System: Mandatory and Suspensory

The new system has two key features:

Mandatory: Covered transactions MUST be notified to the ACCC before they can be completed
Suspensory: The transaction cannot be completed until the ACCC has reviewed it

This means: no notification, no deal. If you complete a notifiable transaction without ACCC approval, you've broken the law.

What Transactions Are Covered?

This is where it gets interesting — and potentially surprising for many businesses.

The new law uses a very broad definition of "assets." It covers:

Any kind of property (real estate, equipment, inventory)
Legal or equitable rights that aren't property
Any interest in proprietary, legal, or equitable rights

In practical terms, this includes:

Transaction TypeIs It Covered?

Buying a company

✅ Yes

Acquiring a portfolio of trade marks

✅ Yes

Licensing a patent (exclusive licence)

✅ Yes

Entering a franchise agreement

✅ Yes

Acquiring a copyright (e.g., a book, film, software)

✅ Yes

Transferring a domain name portfolio

✅ Yes

Acquiring customer data or databases

✅ Yes

Joint ventures involving IP contributions

✅ Yes

The Thresholds: When Do You Need to Notify?

Not every transaction needs to be notified. There are financial thresholds that determine whether a transaction is "notifiable."

From 1 April 2026 (Simplified Thresholds)

For transactions that don't involve acquiring all or substantially all of a business's assets:

Option A:

Your Australian revenue is over $200 million, AND
The global transaction value is over $200 million

Option B:

Your Australian revenue is over $500 million, AND
The global transaction value is over $50 million

If either set of thresholds is met, you need to notify the ACCC.

The "Serial Acquisition" Test

There's also a test for companies that make multiple similar acquisitions over time. If you've acquired similar businesses or assets in the past three years, the ACCC will add up the revenue of all those targets. If the total meets the threshold, even a small new acquisition may need notification.

Exception: If the target's revenue is less than $2 million, it doesn't count towards this test.

Cross-Border Transactions

The regime also applies to cross-border transactions if there's an Australian connection ("nexus"). This is defined broadly:

The asset is acquired from a company that carries on business in Australia, OR
The asset is used in, or forms part of, a business carried on in Australia

Here's the catch: there's no minimum threshold for the Australian connection. This means a global patent portfolio has an Australian nexus if even ONE patent in that portfolio is used in Australia.

What This Means for Common IP Transactions

Trade Mark Transactions

If you're buying or selling trade marks, or transferring a portfolio of marks, this is likely to be caught:

Acquiring a trade mark portfolio from another company = potentially notifiable
Transferring trade marks in a franchise system = potentially notifiable
Licensing trade marks exclusively = potentially notifiable

Patent Transactions

Patents are treated specially. The "ordinary course of business" exemption (which excludes routine transactions) does NOT apply to patents. This means:

Acquiring patents = likely notifiable if thresholds are met
Exclusive patent licences = likely notifiable if thresholds are met
Patent portfolio acquisitions = likely notifiable

Franchise Agreements

Franchise systems involve the transfer of trade marks, know-how, and operational systems. New franchise agreements, or the acquisition of an existing franchise system, are likely to be caught:

New franchise agreements = potentially notifiable
Acquiring a franchise system = definitely notifiable
Transferring a franchise system = potentially notifiable

Software and Technology Licences

Software licences, SaaS agreements, and technology transfers may also be caught, depending on the value and your revenue:

Exclusive software licences = potentially notifiable
Acquiring software IP = potentially notifiable
Technology transfer agreements = potentially notifiable

The Notification Process

Step 1: Determine if Notification Is Required

Ask yourself:

Am I acquiring "assets" (including IP)?
Do I meet the revenue or transaction value thresholds?
Is there an Australian nexus?
Does any exemption apply?

If the answer to questions 1-3 is yes and no exemptions apply, you need to notify.

Step 2: Notify the ACCC

The notification process involves submitting information about:

The parties to the transaction
The assets being acquired
The market context
Competitive effects

Step 3: Wait for ACCC Review

During the review period, you cannot complete the transaction. The ACCC will assess whether the transaction would substantially lessen competition.

Step 4: ACCC Decision

The ACCC can:

Clear the transaction — you can proceed
Raise concerns — you may need to modify the deal
Oppose the transaction — you may need to go to court

The Waiver Option

If you think your transaction is unlikely to raise competition concerns, you can apply for a waiver. This is a simpler process than full notification, but it still requires an official fee.

Penalties for Non-Compliance

If you complete a notifiable transaction without ACCC approval, the penalties are significant:

Corporate fines: Up to the greater of $50 million, 3 times the benefit obtained from the breach, or 30% of the company's turnover
Personal fines: Up to $5 million for directors and officers
Orders to unwind the transaction: The ACCC can force you to reverse the deal
Reputational damage: Being found to have breached competition law is bad for business

Practical Steps for Your Business

1. Map Your IP Transactions

Start by identifying all IP transactions that are in progress or planned:

Pending trade mark assignments
Patent licence negotiations
Franchise agreements
Software licensing deals
M&A transactions involving IP

2. Establish an Internal Process

Create a checklist or workflow that your team follows for every IP transaction:

Does this involve acquiring assets (including IP)?
What are the revenue and transaction value figures?
Is there an Australian nexus?
Do we need to notify the ACCC?
If yes, when do we need to file?

3. Train Your Team

Make sure everyone involved in IP transactions understands the new requirements:

Business development teams
Legal teams
Finance teams
Senior management

4. Factor in Timing

If you need to notify the ACCC, build that into your deal timeline. The review period means you can't close the deal until the ACCC has reviewed it.

5. Consider the Waiver

For straightforward transactions that are unlikely to raise competition concerns, consider applying for a waiver instead of full notification. It's simpler and faster.

6. Keep Records

Keep detailed records of all IP transactions, including:

Transaction values
Target revenues
Dates of completion
Whether notification was required

These records will be important for the "serial acquisition" test.

What to Watch For in 2026

Rule Changes in April 2026

The thresholds are set to change on 1 April 2026. The government may also tweak certain rules during the February-April parliamentary session. Stay alert for updates.

First ACCC Enforcement Actions

The ACCC will start enforcing the new regime soon. Watch for:

First enforcement actions against non-compliant businesses
Guidance notes and FAQs from the ACCC
Waiver applications and decisions

Industry-Specific Guidance

The ACCC may issue industry-specific guidance, particularly for sectors where IP transactions are common:

Technology
Pharmaceuticals
Media and entertainment
Franchising

The Bottom Line

Australia's mandatory merger control regime is a fundamental change to how IP transactions are handled in this country. It affects far more transactions than most businesses expect — including patent licences, trade mark assignments, and franchise agreements.

The key message is simple: if you're doing an IP transaction in Australia, check whether you need ACCC approval before you sign the deal.

The cost of getting it wrong — in fines, unwound deals, and reputational damage — far exceeds the cost of getting it right.

If you're unsure whether a transaction is notifiable, get legal advice. It's always better to be safe than sorry.

This article is for general information only and does not constitute legal advice. If you have questions about merger control and IP transactions in Australia, consult a qualified competition law or intellectual property lawyer.