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Understanding intellectual property (IP) is essential for any business aiming for sustainable growth. Many organisations mistakenly believe that marketing is their primary hurdle. In truth, a lack of clarity in your IP strategy can significantly undermine trust - an indispensable ingredient for long-term success.

This article will equip you with insights into how a robust IP strategy can strengthen your business's credibility and reliability. You will learn about common pitfalls and discover actionable steps to enhance your IP clarity, enabling you to forge stronger connections with your customers.

Identifying the Clarity Challenge

Many organisations face a clarity challenge rather than a marketing issue. This ambiguity results in mixed messages that confuse customers and erode trust. When your IP strategy lacks precision, customers are left uncertain about what distinguishes your offerings.

Take, for example, a company providing innovative software solutions. If it fails to articulate its unique IP, potential customers may gravitate towards competitors who communicate their value propositions more effectively. This scenario highlights a critical error: assuming that customers will inherently understand your value without explicit communication.

The Consequences of Inconsistency

Inconsistent messaging regarding IP can lead to significant missed opportunities. When a business does not clearly define its intellectual property, it risks alienating its audience. This inconsistency breeds scepticism, causing customers to question the reliability of your brand.

Consider a startup that develops a groundbreaking app but neglects to protect its underlying technology through formal IP registration. Competitors swiftly replicate the concept, leaving the original business struggling to carve out a unique identity. This example underscores the necessity of not only possessing IP but also effectively communicating and safeguarding it.

Constructing a Credibility Framework

To cultivate trust, businesses must build a credibility framework that showcases their authority and reliability. This involves a strategic combination of clear communication, robust IP protection, and consistent branding. Each component reinforces the others, creating a solid foundation for customer confidence.

  • Clear Communication: Articulate your unique value proposition as it relates to your IP. Ensure your messaging is straightforward and resonates with your target audience.

- Robust IP Protection: Protect your innovations through patents, trademarks, and copyrights. This not only safeguards your business but also signals to customers that you take your IP seriously.
  • Consistent Branding: Align your branding efforts with your IP strategy. Ensure that both visual and verbal elements reflect your unique identity and reinforce the trustworthiness of your offerings.

Strategic Steps to Enhance IP Clarity

Improving clarity around your IP necessitates a methodical approach. Here are actionable steps to enhance your IP strategy and build trust:

  • Conduct an IP Audit: Review your existing IP assets to identify what is protected and what remains vulnerable. This assessment will inform your strategic direction.

- Educate Your Team: Ensure that all team members understand the significance of IP and its relevance to their roles. This fosters a culture of awareness and responsibility regarding IP issues.
  • Engage with Customers: Solicit feedback from customers on how they perceive your IP. This input can provide valuable insights into the effectiveness of your messaging and highlight areas for improvement.

- Establish IP Guidelines: Develop clear guidelines for representing your IP across all marketing channels. This ensures consistency in communication and branding.

Avoiding Common Pitfalls in IP Strategy

Even established businesses can fall into critical traps regarding their IP strategy. Here are common mistakes to avoid:

  • Failure to Register IP: Many businesses neglect to protect their innovations through formal registration, leaving them vulnerable to competitors who may exploit their hard work.

- Ignoring International IP Laws: As businesses expand globally, they often overlook the complexities of international IP laws, which can lead to significant legal challenges and revenue loss.
  • Inconsistent Messaging: Inconsistencies in communicating IP benefits across different platforms can confuse customers and diminish trust.

- Neglecting to Update IP Strategy: The business environment changes rapidly; thus, your IP strategy should be reviewed and updated regularly to maintain competitiveness.

Action Plan Checklist

  • Conduct an IP Audit: Assess your current IP assets and identify vulnerabilities.
- Educate Your Team: Ensure every team member understands the importance of IP and their role in protecting it.
  • Engage with Customers: Gather feedback on customer perceptions of your IP and messaging.
- Establish IP Guidelines: Create clear guidelines for consistent representation of your IP across all channels.
  • Review Regularly: Schedule regular reviews of your IP strategy to adapt to changing market conditions.

FAQs

What types of intellectual property can I protect?
You can protect various types of IP, including patents, trademarks, copyrights, and trade secrets, each serving distinct purposes.

How do I know if my IP is protected?
Conduct an IP audit to evaluate what is registered and what requires protection. Consulting with an IP attorney will provide a comprehensive review.

What is the first step in developing an IP strategy?
Begin with an IP audit to identify your existing assets and potential gaps in protection.

How often should I review my IP strategy?
Regular reviews should occur at least annually or more frequently if significant changes arise in your business or market.

Can I protect my IP internationally?
Yes, but the process varies by country. Consult with an IP expert who understands international laws to ensure proper protection.

Reflecting on your IP strategy, remember that clarity is foundational to trust and credibility. By addressing common pitfalls and implementing a well-defined IP strategy, your business can cultivate deeper connections with customers and distinguish itself in a competitive marketplace.

Elevate your understanding of intellectual property and its role in fostering trust. For tailored advice and support, reach out to Elise Explains IP today.

About the GNR Media Network

This article was published by a business that is part of the GNR Media Visibility Network — businesses that have chosen to work together to help one another be seen and share their expertise with a wider audience.

Learn more about the GNR Media network.

Insights from other businesses in the GNR Media Network

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As intellectual property (IP) increasingly influences business success, organisations face the challenge of navigating a complex web of rights and regulations. For founders and creators, the task extends beyond merely understanding IP law; it involves strategically leveraging IP to cultivate trust and clarity in their operations. This article offers a structured approach to IP management that not only enhances business strategy but also establishes a solid foundation of trust with stakeholders.

By the end of this article, you will be equipped with essential insights on IP management that facilitate clearer decision-making and a more coherent strategy, enabling you to concentrate on the core drivers of your business.

The Importance of Intellectual Property: A Strategic Asset

Intellectual property encompasses a range of legal rights that protect creations of the mind, including inventions, artistic works, designs, symbols, names, and commercial images. Many businesses tend to regard IP as a legal obligation rather than a strategic asset, a viewpoint that can impede growth and diminish competitive advantage.

Amazement Moment: Research shows that companies with robust IP strategies achieve 20% higher returns on innovation investments than those lacking such strategies. This highlights the importance of perceiving IP as a catalyst for growth rather than simply a compliance necessity.

The Vital Link Between Clarity and Consistency in IP Management

Establishing clarity and consistency in IP management is essential. Many businesses grapple with fragmented messaging regarding their IP assets, resulting in confusion both internally and externally. This inconsistency can undermine trust among employees, clients, and partners, ultimately impacting financial performance.

Amazement Moment: Studies indicate that consistent branding and communication can lead to revenue increases of up to 23%. By ensuring that your IP strategy aligns with your overarching business objectives, you can enhance brand perception and bolster stakeholder confidence.

Navigating IP Ownership Challenges in the Digital Era

The emergence of digital technologies has introduced new challenges in IP ownership. The ownership of digital assets, particularly those generated through innovative technologies, requires careful consideration. Businesses need to evaluate how these assets fit within their IP portfolio and ensure that they are adequately protected.

Amazement Moment: A substantial number of businesses overlook the ownership of AI-generated content, leaving them vulnerable to potential legal disputes. Understanding the intricacies of digital IP ownership is crucial for safeguarding your innovative assets.

Steps to Develop an Effective IP Strategy

Creating a robust IP strategy involves several key steps that can help businesses navigate the intricacies of intellectual property. Here are practical actions to consider:

  • Regularly assess your IP portfolio to identify strengths and weaknesses, ensuring that all assets are protected and aligned with business goals.

- Establish a clear communication plan that outlines how you will convey your IP strategy to stakeholders, fostering trust and transparency.
  • Collaborate with legal experts to understand the implications of emerging technologies on your IP rights, especially concerning digital assets.

- Implement an educational programme for employees on the significance of IP and its relevance to their roles, cultivating a culture of awareness and responsibility.

Action Plan Checklist for Effective IP Management

  • Conduct an IP audit to identify existing assets and potential gaps in protection.
- Develop a clear IP policy that outlines ownership, usage rights, and responsibilities within your organisation.
  • Promote a culture of IP awareness through training sessions and resources for employees.
- Establish a process for monitoring and enforcing IP rights to protect against infringement.
  • Regularly review and update your IP strategy to adapt to changing market conditions and technological advancements.

Frequently Asked Questions

What is intellectual property?
Intellectual property refers to the legal rights that protect creations of the mind, including inventions, artistic works, designs, and trademarks.

Why is IP important for businesses?
IP is vital for safeguarding innovation, maintaining competitive advantage, and enhancing brand reputation. It can also serve as a significant asset for revenue generation.

How can I ensure my IP is protected?
Regularly assess your IP portfolio, consult legal experts, and develop clear policies to protect your intellectual property rights.

What are the common pitfalls in IP management?
Common pitfalls include neglecting to protect digital assets, inconsistent messaging about IP rights, and failing to educate employees on the importance of IP.

How often should I review my IP strategy?
It is advisable to review your IP strategy regularly, ideally annually, or whenever significant changes occur in your business or industry.

In the dynamic realm of intellectual property, clarity and consistency are vital. By adopting a strategic approach to IP management, you can build trust and enhance your business's overall effectiveness. If you are prepared to strengthen your IP strategy, consider scheduling a strategy call with Elise Explains IP for tailored guidance on your unique challenges.

About the GNR Media Network
This article was published by a business that is part of the GNR Media Visibility Network — businesses that have chosen to work together to help one another be seen and share their expertise with a wider audience.

Learn more about the GNR Media network.
Insights from other businesses in the GNR Media Network
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When trade mark disputes involve celebrities, they tend to attract attention well beyond the legal world. The High Court of Australia’s decision in Taylor v Killer Queen LLC [2026] HCA 5 — often referred to as the Katy Perry trade mark case — is a good example.
At one level, the case involved a global pop star and an Australian fashion designer who happened to use almost the same name. But beneath the headlines, the decision clarifies an important principle in Australian trade mark law:
Trade mark rights are assessed based on what the market looked like at the time the trade mark was filed — not with the benefit of hindsight.
For business owners and brand builders, that principle matters far more than the celebrity element of the story.

The Background: Two People, One Name
The dispute involved two different people using almost identical names in commercial contexts.
An Australian fashion designer, Katie Taylor, created a clothing label using her birth name Katie Perry. In 2008, she applied to register “Katie Perry” as a trade mark in Australia for clothing.
Around the same time, American singer Katheryn Hudson was building an international music career under the stage name Katy Perry.
As her career took off, merchandise bearing the Katy Perry name — including clothing — began being sold internationally, including in Australia.
Years later, the Australian designer commenced trade mark infringement proceedings, arguing that the sale of Katy Perry branded merchandise infringed her registered “Katie Perry” clothing trade mark.
The singer’s companies responded with a different argument: they claimed the trade mark registration itself should be cancelled.

The Legal Issue: Can Reputation Invalidate a Trade Mark?
Under the Trade Marks Act 1995 (Cth), a trade mark can be challenged or removed from the register if its use would be likely to deceive or cause confusion because of an earlier reputation.
In simple terms, the singer’s companies argued that Katy Perry already had a reputation in Australia before the designer’s trade mark was filed, and that this reputation meant the “Katie Perry” trade mark should never have been registered.
If that argument succeeded, the trade mark could be removed from the register — eliminating the basis for the infringement claim.

The Different Court Outcomes
One of the reasons this case attracted so much attention is that the outcome changed at each stage of the litigation.
Federal Court (first instance)
At trial, the Federal Court found in favour of the Australian designer.
The Court held that:
  • the “Katie Perry” trade mark was valid, and
  • the sale of merchandise using “Katy Perry” for clothing amounted to infringement.
Full Federal Court (appeal)
The decision was then overturned by the Full Federal Court.
The Full Court accepted that Katy Perry had developed a sufficient reputation in Australia before the trade mark registration. On that basis, the Court held that the “Katie Perry” trade mark should be cancelled.
This dramatically reversed the earlier outcome.
High Court of Australia
The matter then went to the High Court, which ultimately allowed the designer’s appeal.
The High Court concluded that the respondents had not established the level of reputation required to invalidate the trade mark at the relevant time.
As a result, the basis for cancelling the trade mark fell away.

Why the Priority Date Was Critical
The High Court’s reasoning focused heavily on a fundamental concept in trade mark law: the priority date.
The priority date is the date a trade mark application is filed. When courts assess the validity of a trade mark, they generally look at the circumstances that existed at that date.
In this case, the relevant date was September 2008.
The key legal question became:
Did Katy Perry have such a strong reputation in Australia at that time that using “Katie Perry” for clothing would likely cause confusion?
The High Court found that the evidence did not establish that level of reputation in Australia at that point in time.
This meant the legal ground relied upon to cancel the trade mark was not made out.
Importantly, the Court emphasised that the issue cannot be assessed with hindsight. The fact that Katy Perry later became one of the world’s most famous musicians did not change the legal question that had to be answered.

Reputation Must Be Proven — Not Assumed
Another important aspect of the decision is the Court’s approach to evidence of reputation.
Reputation is often relied upon in trade mark disputes, but it must be supported by clear and specific evidence. That might include:
  • sales figures
  • advertising and promotion
  • media coverage
  • public recognition in the relevant market
Crucially, that evidence must relate to the relevant time period.
In this case, the High Court concluded that the evidence did not demonstrate that Katy Perry’s reputation in Australia in 2008 was strong enough to create the required likelihood of confusion in relation to clothing.

What This Means for Brand Owners
Although the case involved a celebrity, the principles it reinforces apply to any business building a brand.
1. Trade mark timing mattersThe earlier a trade mark application is filed, the earlier the priority date is secured. That date can become critical if a dispute arises later.
2. Reputation arguments require evidenceIf a party wants to challenge a trade mark based on prior reputation, they must prove that reputation at the relevant time. Courts will not simply assume it existed.
3. Trade mark disputes are not judged with hindsightLater success or fame does not necessarily rewrite the legal position that existed when a trade mark was registered.
4. Brand selection should be strategicThis case is a reminder that brand names can create unexpected legal issues, particularly where personal names or well-known identities are involved.
Early trade mark advice and clearance searches can help identify potential risks before a brand becomes established.

Key Takeaways
​The High Court’s decision highlights an important balance in trade mark law.
On the one hand, the law recognises that reputation can create rights, even without registration.
On the other hand, the trade mark system is designed to provide certainty and predictability through the register.
By focusing on the priority date and the evidence available at that time, the High Court reinforced that balance.
For businesses, the lesson is straightforward:
Protecting a brand is not just about marketing — it’s also about timing, strategy, and evidence.
Taking the right steps early can make a significant difference if a dispute arises years later.

Case reference:
Taylor v Killer Queen LLC [2026] HCA 5
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Most business owners think of trade marks as names and logos.
But in the right circumstances, your packaging shape, container, or even a colour can become a registered trade mark.
That can be commercially powerful — particularly in competitive retail markets where shelf recognition drives purchasing decisions.
However, as the recent Moccona coffee jar decision shows, protecting non-traditional trade marks is rarely straightforward.
Let’s break down what the law allows — and what it doesn’t.

Trade Marks Aren’t Limited to Words
Under the Trade Marks Act 1995 (Cth), a trade mark is a “sign” used to distinguish goods or services.
A “sign” can include:
  • Shape
  • Colour
  • Aspect of packaging
  • Sound
  • Scent
So yes — the shape of a jar, the layout of a box, or a specific shade applied to goods can potentially be registered.
But registration depends on one central concept:
Does it function as a badge of origin?
In other words, does it tell consumers who the product comes from?

When Can Packaging or Shape Be Registered?
To be registrable, a packaging shape must be:
  1. Distinctive
  2. Non-functional
  3. Capable of distinguishing your goods from others
This is where many businesses run into difficulty.
The Functionality ProblemTrade mark law does not allow you to monopolise features that are primarily functional.
If a shape:
  • Makes the product easier to grip
  • Improves storage or stacking
  • Is cheaper or more efficient to manufacture
  • Is common in the industry
…it is unlikely to qualify.
Trade marks protect brand signals — not engineering advantages.
If a feature is functional, it may have been protectable by patent (for a limited time), but it cannot be locked up indefinitely under trade mark law.

The Moccona Coffee Jar Case
A recent Federal Court decision illustrates how complex this area can be.
Moccona sells instant coffee in a distinctive glass jar — clear glass, slightly tapered cylindrical body, broad shoulders and a short neck. The shape has been used consistently for decades and was registered as a trade mark in Australia.
When competitor Cantarella (Vittoria) launched instant coffee in a jar with a similar silhouette, Moccona sued for trade mark infringement.
What did the Court decide?The Court found that:
  • Moccona’s jar shape had acquired distinctiveness before registration.
  • However, Cantarella had not used the jar shape “as a trade mark.”
That distinction was decisive.
The Court concluded that consumers relied primarily on:
  • Prominent word marks
  • Labels
  • Branding elements
— not the jar shape alone — to identify origin.
So although Moccona had a valid registration, infringement was not established.
The commercial lessonRegistration is not enough.
To enforce a shape mark, you must show that:
  • The competitor is using the shape as a badge of origin; and
  • Consumers perceive it that way in context.
Courts assess real-world purchasing behaviour — not theoretical distinctiveness.

Can a Colour Be a Trade Mark?
Yes — but it is often even harder than shape marks.
Colour marks are registrable in Australia if they:
  • Are precisely defined (often using a Pantone reference); and
  • Distinguish the applicant’s goods or services.
Most colours are considered decorative or commonly used within industries. That means distinctiveness often needs to be acquired through long-term, consistent use.
International examples
  • Tiffany Blue has become synonymous with Tiffany & Co jewellery packaging.
  • Cadbury’s attempts to secure exclusive rights over a particular shade of purple demonstrate how difficult and heavily scrutinised colour monopolies can be.
The key theme across jurisdictions: colour protection is earned over time through consistent, exclusive use.

Distinctiveness: Inherent vs Acquired
There are two ways a non-traditional mark can be distinctive:
1. Inherent distinctiveness: The shape or colour is unusual and immediately distinctive from day one.
2. Acquired distinctiveness: Through years of use, consumers come to associate the feature with one trader.
Acquired distinctiveness requires evidence, such as:
  • Length of use
  • Sales figures
  • Advertising spend
  • Market share
  • Consumer recognition
This becomes an evidentiary exercise, not just a legal one.

Practical Guidance for Business Owners
If your packaging plays a central role in how customers recognise you, consider the following:
1. Design deliberately - If you want protection, avoid default industry shapes.
2. Be consistent - Frequent design variations weaken claims of acquired distinctiveness.
3. Keep records - Marketing spend, sales data and longevity of use all support registrability.
4. Think in layers - Strong trade mark strategy usually combines:
  • Word marks
  • Logos
  • Packaging get-up
  • Possibly shape or colour marks
Non-traditional marks work best as part of a broader brand protection strategy.

The Strategic Question to Ask
If you removed your brand name from your packaging, would customers still know it was yours?
If yes — and you can prove it — you may have a protectable asset.
If not, your trade mark strategy may need strengthening before registration is realistic.

Key Takeaways
Packaging and colours can absolutely become trade marks in Australia.
But they must function as genuine indicators of origin — not just attractive design choices.
The Moccona decision is a reminder that:
  • Distinctiveness matters.
  • Context matters.
  • Enforcement depends on consumer perception.
  • Registration is only one step in a broader brand strategy.
For businesses investing heavily in shelf presence, product presentation or premium positioning, these issues are not cosmetic — they’re strategic.

If you’re building a brand where packaging carries real commercial weight, it’s worth assessing whether those elements are capable of protection — and whether your current use supports that claim.
Because the strongest brands don’t just protect their names.
They protect how they show up in the market.
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Many business owners assume trade mark protection travels with their brand.
It doesn’t.
Trade marks are territorial rights. If you register your mark in Australia through IP Australia, you obtain rights in Australia only — not globally.
That distinction becomes critical the moment your business expands beyond Australian borders, whether through manufacturing, exporting, or online sales.
This article explains when international trade mark protection becomes necessary, what risks arise if you delay, and how businesses can approach global filing strategically.
Trade Marks Don’t Travel With Your Business
There is no such thing as a “worldwide trade mark”.
Every country maintains its own register, its own examination process, and its own enforcement system.
So the key strategic question is not:
“Should I file internationally?”
It’s:
“Where is my brand exposed?”
Exposure can arise through manufacturing, distribution, online sales, or expansion plans — not just where you currently operate.
Manufacturing Overseas Creates Real Trade Mark Risk
Many Australian businesses manufacture in Asia while selling primarily at home.
However, countries such as China operate on a strict first-to-file system. Whoever files the mark first usually obtains the rights, regardless of prior use elsewhere.
That creates a very practical risk.
If a factory, distributor, or third party registers your brand before you do, they may:
  • Block your goods at export
  • Register your mark with customs
  • Demand payment to transfer the rights
  • Force a rebrand in that jurisdiction
Manufacturing alone can justify trade mark protection in a country — even if you don’t sell there.
Reputation Doesn’t Equal Ownership
Even globally recognised brands encounter this issue.
Luxury label Jimmy Choo spent years dealing with Chinese trade mark disputes after a local party registered a Chinese transliteration of its name. The company’s international reputation did not automatically grant ownership in that market.
Closer to home, Australian wine producer Penfolds has also faced ongoing issues involving similar branding and Chinese character marks in China. These disputes demonstrate how quickly third-party registrations can interfere with market access and brand integrity.
The lesson is simple:
Trade mark ownership depends on registration, not recognition.
Expansion Can Expose You Overnight
Entering a new country where someone else already owns your mark can result in:
  • Online marketplace takedowns
  • Customs enforcement actions
  • Cease-and-desist letters
  • Licensing demands
  • Rebranding costs
This risk exists regardless of how long you have traded in Australia.
Clearance searches before entering a new market are therefore not optional — they are risk management.
The eCommerce Trap
Digital businesses often assume they are “local” because they operate from Australia.
But if your website:
  • Ships internationally
  • Displays foreign currency pricing
  • Targets overseas customers
You may already be using your trade mark in other jurisdictions.
E-commerce removes geographic limits on customers. Trade mark law does not remove geographic limits on rights.
For online businesses in particular, international trade mark strategy should be considered at launch — not after expansion.
How Australian Businesses File Internationally
There are two primary pathways to obtain overseas protection.
1. Convention Applications
Under the Paris Convention, you can file in Australia first and then file in other countries within six months while claiming your Australian filing date as a priority date.
Each filing proceeds independently in each country.
This approach offers flexibility and avoids reliance on a single base registration, but it involves higher administrative cost.
2. Madrid Protocol Applications
Alternatively, you can file a single international application through the World Intellectual Property Organization under the Madrid Protocol and nominate multiple countries.
This route can be efficient and cost-effective, but it carries a structural risk: for the first five years, the international registration depends on your Australian base application. If that base mark is limited, refused, or cancelled, the entire international registration may collapse — a vulnerability known as a central attack.
The appropriate strategy depends on budget, expansion plans, and the strength of the Australian application.
When Do You Actually Need International Trade Marks?
​International protection becomes important when:
  • You manufacture overseas
  • You export or plan to export
  • Your website targets international customers
  • Investors are assessing your scalability
  • Your brand forms a core business asset
If your business is genuinely local with no expansion plans, immediate international filing may not be necessary.
But once cross-border exposure arises, trade marks shift from a defensive tool to a strategic one.
The Cost of Waiting
Delaying filings in first-to-file jurisdictions can lead to:
  • Litigation
  • Negotiation with opportunistic registrants
  • Forced buy-backs
  • Market delays
  • Or rebranding
Each of those outcomes costs significantly more than filing early.
International trade mark protection is not about prestige or global ambition. It is about safeguarding your supply chain, market access, and brand value.
Because once someone else owns your mark in a key jurisdiction, reclaiming it can be difficult — and expensive.
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Choosing a business name is one of the most important brand decisions you will make. But from a legal perspective, not all trade marks are created equal.
If you want your trade mark to be registrable, enforceable, and commercially valuable, it needs to be distinctive.
In this article, we explain how to choose a strong trade mark in Australia and avoid common naming mistakes that can undermine protection.

What Makes a Trade Mark Strong?
A strong trade mark is one that clearly distinguishes your goods or services from those of other traders.
Under Australian trade mark law, distinctiveness is critical. The more distinctive your mark, the:
  • Easier it is to register
  • Broader your protection will be
  • Stronger your position in an opposition or infringement dispute
  • More valuable your brand becomes over time
Trade marks generally fall along a spectrum of strength.

The Trade Mark Strength Spectrum
1. Invented (Fanciful) Trade Marks
These are completely made-up words with no dictionary meaning (for example, Kodak or Xerox).
Why they’re strong:
They are inherently distinctive and typically straightforward to register.

2. Arbitrary Trade Marks
These use real words in an unrelated context (for example, Apple for computers).
Why they’re strong:
They do not describe the product or service, making them highly protectable.

3. Suggestive Trade Marks
These hint at the nature of the goods or services but do not directly describe them (for example, Netflix).
Why they can work:
They are often registrable, though sometimes subject to closer examination.

4. Descriptive Trade Marks
These directly describe the goods or services (for example, “Fast Tax Returns” or “Melbourne Plumbing Services”).
Why they’re weak:
Descriptive trade marks are difficult — and often impossible — to register without evidence of acquired distinctiveness.

5. Generic Terms
These are the common name for the product or service (for example, “Coffee Shop”).
Why they cannot be protected:
Generic terms are not capable of functioning as trade marks.

Common Mistakes When Choosing a Trade Mark
When selecting a business name, we frequently see:
  • Overly descriptive names chosen for marketing clarity
  • Failure to conduct trade mark searches before investing in branding
  • Reliance on geographic terms
  • Assuming company registration or a domain name equals trade mark protection
Registering a company name with ASIC does not provide trade mark rights. Trade mark protection requires a separate application with IP Australia.

Practical Tips for Choosing a Strong Trade Mark
If you are naming a new business or product, consider the following:
  • Prioritise invented, arbitrary, or suggestive names
  • Avoid directly describing what you sell
  • Think beyond your current location or service scope
  • Conduct clearance searches early
  • Obtain trade mark advice before committing to branding
A distinctive name may feel less obvious at first — but legally, it places your business in a far stronger position.
​
Key Takeaways
Choosing a strong trade mark is not just a branding exercise — it is a strategic legal decision.
A distinctive trade mark is easier to register, easier to enforce, and more valuable as your business grows.
If you are unsure whether your proposed name is registrable, seeking advice early can prevent costly rebranding later.
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In November 2025, the UK High Court handed down its long-awaited decision in Getty Images v Stability AI, the first major judgment anywhere in the world to meaningfully address how copyright and trade mark laws apply to generative AI systems.
The case has been closely watched by creators, rights-holders, technology companies and lawyers alike. While the decision arises under UK law, its reasoning will inevitably influence how similar disputes unfold in Australia.
So what did the Court decide — and what should Australian businesses and content owners take away from it?
The Dispute in Brief
Getty Images alleged that Stability AI, the developer of the image-generation model Stable Diffusion, had:
  • Used Getty’s copyrighted images to train its AI model without permission; and
  • Enabled the generation of images containing Getty’s trade marks and watermarks, including “Getty Images” and “iStock”.
Getty brought claims for copyright infringement, secondary copyright infringement, trade mark infringement and passing off.
While the case initially appeared set to answer the question many have been asking — is training AI on copyrighted content unlawful? — it ultimately turned on a narrower, but still highly significant, set of issues.
Copyright: Why the Core Claim Was Never Decided
Crucially, Getty accepted during the proceedings that the training and development of Stable Diffusion did not take place in the United Kingdom.
That concession proved fatal to Getty’s primary copyright infringement claim. Under UK law, copyright infringement is territorial. If the act of copying occurred overseas, a UK court may have no infringement before it.
As a result, the High Court did not decide whether training an AI model on copyrighted images constitutes infringement as a matter of law.
This is an important reminder for rights-holders: where AI training occurs can be just as important as how it occurs.
Are AI Models “Infringing Copies”?
​Getty’s fallback argument was that the AI model itself — specifically its “weights” — embodied copies of Getty’s images. On that basis, Getty argued that making Stable Diffusion available in the UK amounted to importing and dealing in infringing copies.
The Court rejected this argument.
It held that:
  • AI model weights are statistical parameters, not stored images or reconstructions;
  • They do not contain a recognisable reproduction of any particular photograph; and
  • Accordingly, the model is not an “infringing copy” for the purposes of UK copyright law.
This aspect of the decision provides some comfort to AI developers, but it is highly fact-dependent and grounded in the specific statutory language of the UK legislation.
Trade Marks: Where Getty Found Success
Getty’s trade mark claims fared better.
The Court accepted evidence that earlier versions of Stable Diffusion, when prompted in ordinary and realistic ways, could generate images containing Getty or iStock watermarks.
That mattered because:
  • Trade marks can be infringed even without intent; and
  • Liability can arise where marks are used in the course of trade and are capable of confusing consumers.
While the Court ultimately characterised the infringement as limited and historic, it was clear that AI developers cannot ignore the risk posed by outputs that reproduce trade marks or branding.
Importantly, the Court gave weight to Stability AI’s later efforts to introduce filtering and safeguards, particularly in hosted environments.
What Does This Mean for Australia?
Although this is a UK decision, Australian courts are likely to look closely at its reasoning when similar disputes arise here.
Copyright and AI TrainingAustralia’s Copyright Act also operates territorially, but Australian courts have historically taken a broad approach to what constitutes “reproduction”, particularly in digital contexts.
Whether AI training involves reproduction “in a material form” remains an open question in Australia. The UK decision will be persuasive, but it does not settle the issue locally.
Secondary InfringementThe UK Court’s conclusion that model weights are not copies may resonate with Australian courts, but again, this would depend on the evidence and statutory interpretation under Australian law.
Trade Marks and OutputsOn trade marks, the lesson is clearer.
If an AI system generates outputs that include registered trade marks and those outputs are used commercially, there is a real risk of infringement under Australian trade mark law. The focus is increasingly on outputs, not just inputs.
Practical Takeaways
For rights-holders and content owners:
  • Monitor not only dataset usage, but where AI training takes place
  • Trade marks and watermarks remain powerful enforcement tools
  • Contractual controls over AI training are still the most reliable protection
For AI developers and deployers:
  • Open-source availability does not eliminate legal risk
  • Filtering, watermark detection and output controls matter
  • Maintain clear records of data provenance, training locations and safeguards
Looking Ahead
Getty Images v Stability AI does not provide all the answers — but it marks a significant step in how courts are beginning to approach AI and intellectual property.
Copyright law may struggle to stretch around AI training practices. Trade mark law, however, is already proving more adaptable.
For Australian businesses operating in this space, the message is clear: the legal landscape is evolving quickly, and proactive risk management is essential.
You can listen to the full discussion of this case on the latest episode of Elise Explains IP. If you would like advice on how AI intersects with your IP strategy, please get in touch.
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Lookalike products — often called dupes — are everywhere. They promise consumers a familiar experience at a lower price, and for retailers, they are a powerful commercial strategy. But from an intellectual property perspective, dupes sit on a legal fault line.
Courts in Australia and the United Kingdom are drawing clearer boundaries around copycat packaging and branding — and why Aldi, in particular, keeps finding itself at the centre of these disputes.
This blog post expands on those themes and explains what brand owners and product teams should take away from two recent and important cases.
What is a “dupe” in IP terms?
A dupe rarely copies a brand name or logo outright. Instead, it borrows:
  • colour palettes
  • layouts and composition
  • typography and font styles
  • imagery, characters, or iconography
  • the overall “look and feel” of a product
The legal issue is not whether consumers are fooled into thinking they are buying the original. Increasingly, the question is whether a competitor is leveraging the reputation, investment, or creative effort of another brand without permission.
That is where modern IP disputes are being won — and lost.
The Australian position: copyright steps into the spotlight
In Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452, the Federal Court of Australia considered whether Aldi’s children’s snack packaging infringed copyright in the competing Bellies range.
The case is significant because:
  • The court found copyright infringement in packaging artwork, not trade mark infringement.
  • Aldi’s packaging reproduced a substantial part of the original artistic works — assessed qualitatively, not mechanically.
  • Internal evidence showed the competing products were used as a benchmark during the design process.
Importantly, the court did not require evidence of consumer confusion.
This matters because trade mark and passing-off claims against Aldi have often failed in Australia. Courts have historically been reluctant to find deception where consumers understand they are buying an Aldi product, even if the packaging looks similar.
Copyright law changes that dynamic.
Where packaging involves original artistic expression — including layout, fonts, illustrations, characters and composition — it may be protected as an artistic work. If a substantial part of that work is reproduced, infringement can occur regardless of what consumers think.
The UK position: unfair advantage and “parasitic intent”
The UK case, Thatchers Cider Company Ltd v Aldi Stores Ltd, takes a different but complementary approach.
Thatchers owned a registered trade mark for the branding of its Cloudy Lemon Cider. Aldi launched a competing cider with packaging that the Court of Appeal ultimately found was designed to call Thatchers to mind.
The court held that:
  • Aldi intended consumers to think “this is like Thatchers, but cheaper”
  • That intent meant Aldi took unfair advantage of the reputation of Thatchers’ trade mark
  • Infringement was established under section 10(3) of the UK Trade Marks Act — even without consumer confusion
This is sometimes described as a “bad actor” or parasitic intent case. The focus is not on mistake, but on exploitation: using another brand’s marketing investment as a shortcut.
Aldi sought permission to appeal to the UK Supreme Court, but that permission was refused in 2025.
The bigger picture: IP strategies need to be layered
Taken together, these cases show that relying on trade marks alone is often insufficient.
Key lessons for brand owners include:
1. Look beyond trade marks
Copyright, registered designs, and trade marks each protect different aspects of a product. Packaging frequently engages all three.
2. Protect creative packaging early
Original artwork, illustrations, layouts and typography should be treated as valuable IP assets, not just marketing materials.
3. Intent matters
Internal documents, benchmarking instructions and design briefs can become critical evidence in infringement proceedings.
4. Confusion is no longer the only battleground
Courts are increasingly prepared to intervene where a competitor deliberately rides on the reputation of another brand — even where consumers know they are buying a cheaper alternative.
Key Takeaways
Dupe culture is not going away. But these decisions show courts are becoming less tolerant of strategies that cross from competition into appropriation.
If your brand relies on distinctive packaging or visual identity, a layered IP strategy — combining trade marks, copyright and design protection — is no longer optional. It is essential.
If you’d like to hear a deeper breakdown of these cases, including how they fit into Aldi’s broader litigation history, you can listen to the full episode of Elise Explains IP wherever you get your podcasts.
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Using a foreign word in a brand name can feel clever, distinctive, or sophisticated. Many businesses assume that choosing a non-English word automatically gives them a stronger, more protectable trade mark.
Unfortunately, Australian trade mark law does not work that way.
Foreign words are assessed under the same legal framework as English words, and in many cases they can be just as descriptive — and just as vulnerable.
Distinctiveness Is the Starting Point
To be registrable in Australia, a trade mark must be capable of distinguishing your goods or services from those of others.
Marks that merely describe:
  • the nature of the goods or services,
  • their quality or characteristics, or
  • something traders might legitimately want to use,
will often be refused registration or offer only weak protection.
This rule applies regardless of the language used.
How Australia Assesses Foreign Words
The key question is not what the word means in another country, but how it is understood in Australia.
Australian examiners and courts ask whether the ordinary Australian consumer, or the relevant section of the public, would:
  • recognise the language, and
  • readily understand the meaning of the word in context.
If they would, the foreign word may be treated as if it were English when assessing whether it is descriptive.
This is particularly relevant in industries where foreign terms are commonly used or widely understood, such as:
  • food and beverage,
  • fashion,
  • wine and hospitality, and
  • lifestyle and consumer brands.
Italian, French, and Spanish words often fall into this category.
The High Court and the Cantarella Bros Case
A leading Australian authority on this issue is the High Court decision in Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48.
The case concerned the Italian words ORO (“gold”) and CINQUE STELLE (“five stars”) used as trade marks for coffee.
A competitor argued that these words were descriptive of quality and therefore not capable of distinguishing Cantarella’s products. While that argument initially succeeded in the Federal Court, the High Court ultimately disagreed.
The High Court clarified several important principles:
  • There is no special or additional test for foreign word marks.
  • The same distinctiveness test applies to English and non-English words.
  • What matters is how the words are understood in Australia, not their literal dictionary translation.
  • It must be shown that Australian consumers would see the words as directly describing the goods or services.
  • There must also be evidence that other traders need to use those words to honestly describe their goods.
On the evidence, the Court was not persuaded that Australian coffee consumers would treat ORO or CINQUE STELLE as directly descriptive, or that competitors required those words. As a result, the trade marks remained valid.
When Foreign Words Can Still Work
Foreign words are not automatically doomed.
A foreign word may still be registrable if:
  • it is obscure or not commonly understood in Australia,
  • it has no clear descriptive connection to the goods or services, or
  • it is used in an unexpected or arbitrary way.
Distinctiveness often comes from context, not just language. A word does not need to be obscure to function as a trade mark — it needs to act as a badge of origin, not a description.
Why This Is a Branding Risk Issue
This issue goes far beyond legal technicalities.
Businesses regularly invest significant time, money, and goodwill into branding built around foreign words, only to discover later that:
  • the mark cannot be registered,
  • protection is extremely narrow, or
  • competitors are free to use similar language.
By that point, rebranding can be expensive and disruptive.
Trade mark strategy should be part of the brand development process, not an afterthought once marketing assets are already live.
Key Takeaways
​Foreign words can be powerful brand tools — but they are not a shortcut to distinctiveness.
Before committing to a name, it is critical to assess:
  • how Australian consumers are likely to understand it,
  • whether it is descriptive in context, and
  • whether it will actually function as a trade mark.
If you are considering a foreign word as part of your brand, a clearance search and strategic assessment early on can save significant cost and risk later.
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For many businesses, confidentiality protection begins and ends with an NDA.
Sign the document, exchange information, move on.
But in practice, that approach leaves significant gaps — and courts are rarely sympathetic when those gaps are exposed.
In my most recent episode of Elise Explains IP, I explore what actually protects your confidential information and intellectual property, beyond relying on a standalone NDA. The reality is that enforceable protection requires a combination of legal drafting, operational discipline, technical safeguards, and cultural alignment.
Below is a practical framework to help you move beyond “paper protection” and towards strategies that hold up in the real world.
NDAs Are Useful — But They Are Not a Strategy
NDAs serve an important purpose. They signal that information matters, establish expectations, and provide a contractual basis for confidentiality obligations.
However, NDAs often fail because they are:
  • vague or overly broad
  • unrealistic in their obligations
  • disconnected from how the business actually handles information
Courts assess confidentiality disputes by asking a simple question: did you treat the information as confidential in practice?
If the answer is no, even the strongest-looking NDA may not save you.
Crafting Agreements That Actually Hold Up
A strong confidentiality agreement is not about length or legal jargon. It is about precision and credibility.
In practice, enforceable NDAs tend to share three characteristics:
1. Clear and specific definitions
Courts expect clarity. “Confidential Information” should be identifiable, whether that means source code, technical documentation, customer lists, pricing models, prototypes, or even information disclosed in particular meetings.
If you cannot point to what is protected, a court is unlikely to do it for you.
2. Reasonable, practical obligations
Confidentiality obligations must reflect what is realistically achievable. Requiring “absolute secrecy” or perpetual restrictions with no nuance often undermines enforceability. Courts look for reasonable steps, not perfection.
3. Meaningful remedies
Well-drafted agreements include rights to injunctive relief, not just damages. Once confidential information is disclosed, financial compensation alone is often inadequate.
An NDA should align with how your business actually operates — not how you wish it operated.
Layered Security: Supporting Your Legal Framework
​Confidentiality does not exist on paper alone. Courts increasingly examine the technical and physical measures used to protect information.
This is where layered security becomes critical.
Digital controls may include:
  • encrypted storage
  • multi-factor authentication
  • role-based access permissions
  • secure code repositories
  • remote-wipe capabilities
  • immediate removal of access when staff or contractors exit
Surprisingly often, former employees retain access to systems long after they leave. That single oversight can undo an otherwise robust confidentiality framework.
Physical controls still matter:
  • secure areas for sensitive materials
  • controlled access to offices or labs
  • visitor protocols
  • secure disposal of documents
  • clean-desk policies
Together, these measures demonstrate that confidentiality is actively protected, not merely asserted.
Building a Culture of Confidentiality
One of the most overlooked risks to IP is internal behaviour.
Confidentiality should not rely on employees “remembering” their obligations — it should be embedded in how the organisation operates.
Practical steps include:
  • clear onboarding training that explains why confidentiality matters
  • regular reminders and refreshers
  • disciplined offboarding processes
  • normalising secure communication practices
When confidentiality is part of a company’s DNA, breaches are less likely — and far easier to address if they occur.
The Open-Source Software Risk Many Businesses Miss
Open-source software is an essential part of modern development. It accelerates innovation and avoids unnecessary duplication.
However, unmanaged open source can quietly undermine an entire commercialisation strategy.
Key risks include:
  • copyleft licences, such as GPL, which may require disclosure of your proprietary code
  • lack of visibility over which open-source components are used
  • developers copying code without understanding licence terms
  • software supply-chain vulnerabilities
These issues often surface during due diligence, fundraising, or acquisition — when it is too late to fix them cheaply.
Effective management does not mean avoiding open source. It means:
  • tracking components and licences
  • educating development teams
  • implementing approval processes
  • conducting regular compliance checks
Governance is the difference between leverage and liability.
Bringing It All Together
NDAs are a starting point — not a complete protection strategy.
Real-world confidentiality protection relies on:
  • enforceable, well-drafted agreements
  • layered digital and physical security
  • a culture where confidentiality is normal
  • informed management of open-source software
Businesses that address all four are significantly better positioned to protect their IP, satisfy investors, and avoid the costly “we thought we were covered” moment.
If this topic is relevant to your business, the full podcast episode explores these issues in greater depth with practical examples and guidance.

Author

Elise Steegstra is an Australian Lawyer and general law nerd