IP year in review: Australian IP litigation and legislative developments in 2025

Facts

The applicant is a fashion designer. She is the registered owner of Australian trade mark no. 1264761 for the word KATIE PERRY which is registered in class 25 for clothes with a priority date of 29 September 2008. Ms Taylor has designed and sold clothes under the brand name 'KATIE PERRY' since about 2007.

The second respondent is a music artist and performer who has adopted the name 'Katy Perry' since 2002. The remaining respondents are entities associated with Katy Perry.

The applicant brought trade mark infringement proceedings against the respondents for selling clothing merchandise in Australia using the trade mark 'KATY PERRY'.  

Findings

At first instance in the Federal Court, the primary judge found trade mark infringement in favour of the applicant.

However, the Full Federal Court overturned the first instance decision and found in favour of the respondents' cross-claim seeking cancellation of the KATIE PERRY trade mark registration on the basis that it was likely to deceive or cause confusion. The Full Court's findings included that:

• the primary judge had erred by finding that the reputation in Katy Perry's mark before the priority date of the KATIE PERRY registration was only in music and entertainment and not clothes, which ignored the common practice of singers to launch their own clothing labels and sell clothing merchandise at concerts; and
• the applicant applied to register KATIE PERRY with the knowledge of the reputation of Katy Perry.  

Implication

This case will determine how far reputation in a celebrity's name as a trade mark can extend, particularly in relation to any goods and services that are not part of their core business.  

See case: Killer Queen, LLC v Taylor [2024] FCAFC 149  

Facts

The applicant is the owner of the registered trade mark ZIP for 'Financial affairs (loans)' in class 36 since 2004.

The respondents have operated a 'Buy Now Pay Later' service using the trade mark 'Zip' or 'ZIP', either on its own or in connection with another word such as 'money', 'pay', 'trade' or 'business', since 2013.

The applicant brought proceedings for trade mark infringement.  

Findings

At first instance in the Federal Court, the primary judge found the relevant marks were not deceptively similar and upheld several defences to infringement raised by the respondents.

On appeal, the Full Federal Court found infringement was established. The Full Court held:

• The relevant marks were deceptively similar. Deceptive similarity must be assessed by comparing: (i) the notional use by the applicant across the full scope of services covered by the applicant's registration, rather than the applicant's actual use of its mark, with (ii) the actual use by the respondents of their marks for the 'Buy Now Pay Later' service.
• The respondents did not make out a defence based on 'honest concurrent use'. The correct date for assessing the application of the defence is the date of first actual use by the respondents and not an earlier date on which they decided to adopt the name for their business. Based on the date of actual use, the respondents did not discharge their onus to prove their use was honest, because by that time they already had their trade mark applications to register ZIP rejected and received adverse examination reports from IP Australia citing the earlier registration by the applicant. The respondents did not investigate these issues further, nor seek legal advice. For similar reasons, the defence based on good faith use of their corporate name also failed.

The respondents have been granted special leave to appeal to the High Court.  

Implication

It is critical for businesses to ensure that proper trade mark clearance is conducted before adopting and using any new brands so that risks of infringing third-party trade marks can be promptly identified and resolved. In this case, the respondents’ reliance on limited internet searches and their disregard of adverse registry material was central to the court’s conclusion that honesty could not be established for the purposes of the honest concurrent use defence. 

See case: Firstmac Limited v Zip Co Limited [2025] FCAFC 30

Facts

The appellant is the patentee of a patent which claims controlled release aripiprazole formulations, with the only active pharmaceutical ingredient (API) being aripiprazole.

The appellant sought a patent term extension (PTE), which was granted.

Under section 70 of the Patents Act 1990 (Cth), a patent will be eligible for a PTE of up to five years if it satisfies a number of requirements, including that the patent specification must disclose one or more pharmaceutical substances per se, or one or more pharmaceutical substances when produced by a process that involves the use of recombinant DNA technology.

The respondent challenged the validity of the patent term extension, including on the basis that the formulations are not 'pharmaceutical substances'.  

Findings

At first instance in the Federal Court, the primary judge found, following a line of authority since 2006, that a PTE can be granted in respect of a formulation, but found the PTE to be invalid on other grounds. 

On appeal, controversially, the Full Federal Court unanimously held that only APIs meet the statutory definition a 'pharmaceutical substance', which is limited to substances that are 'active' (ie capable of 'interacting with' a human physiological system in specified ways, or 'acting on' certain harmful presences) and that patents for formulations of APIs are not eligible for PTE.

The appellant has sought special leave to appeal to the High Court—the next step is for the High Court to consider whether leave should be granted to allow the appeal.  

Implication

This decision overturns almost 20 years of Australian authority and means that many existing PTEs are now vulnerable to challenge and revocation. IP Australia has also temporarily paused processing of PTE applications while they consider this decision.

We recommend pharmaceutical patentees urgently review their Australian portfolios to identify any PTEs that may now be vulnerable and consider the commercial impact of the loss of such PTEs.

For further discussion of this case, please see our previous Insight.  

See case: Otsuka Pharmaceutical Co Ltd v Sun Pharma ANZ Pty Ltd [2025] FCAFC 161

Facts

The applicant is the developer of the video game Grand Theft Auto V (GTA V).

The respondent is the developer and distributor of software called the 'Infamous Mod', which modifies the PC version of GTA V by allowing users to perform unauthorised actions in the game's online mode to gain advantages over other players, such as teleportation, creating copies of game objects and causing the player to become invincible. The Infamous Mod does this by patching or modifying parts of the PC files for GTA V as they are reproduced into RAM.

The applicant brought claims for:

• copyright infringement, authorisation of copyright infringement and misleading or deceptive conduct—those were upheld in 2021 due to the respondent's failure to file and serve evidence; and
• contravention of sections 116AN and 116AO of the Copyright Act 1968 (Cth), which prohibit a person from (respectively) circumventing, or manufacturing/trafficking devices that circumvent, 'technological protection measures' (TPMs). TPMs are digital mechanisms used by copyright owners to control access to, or use of, their copyright material.

Findings

Of the three TPMs the subject of the applicant's claim, the Federal Court found that the respondent's manufacture and distribution of the Infamous Mod was in breach of section 116AO in relation to the first and second TPMs, but there was a lack of evidence concerning the third. However, the respondent's conduct did not breach section 116AN since he was not the person actually using the Infamous Mod to circumvent the TPMs. 

Implication

There have not been any Australian judgments on the technological protection measure provisions in the Copyright Act since they were last amended in 2006. Therefore, this is a very useful authority for game and software developers to rely on in relation to the application of those provisions.  

See case: Take-Two Interactive Software, Inc v Anderson (No 2) [2024] FCA 1459

Facts

The applicant operates a halal abattoir.

The respondent conducts an animal protection advocacy operation. On several occasions, the respondent trespassed onto the applicant's premises and obtained footage of activities conducted on the premises. The respondent then distributed and published the footage, which it described as depicting instances of animal cruelty.

The applicant sought an injunction to restrain the respondent from publishing the footage and argued a constructive trust in the applicant's favour should be imposed over the copyright in the footage.  

Findings

At first instance in the Federal Court, the primary judged refused to grant injunctive relief and declined to impose a constructive trust over the copyright in the footage. However, the primary judge awarded general damages of $30,000 and exemplary damages of $100,000 for the respondent's trespass, and in light of his findings that the respondent had engaged in intentional wrongdoing 'with contumelious disregard for [the applicant]'s property rights'.

On appeal, the Full Federal Court upheld the award of damages, but also granted the injunctive relief and imposed a constructive trust over the copyright in the footage.

The Full Federal Court found that this was a clear case for application of the principle previously stated to be possible by four judges of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199. That is, where a film may have been made in circumstances involving the invasion of the legal or equitable rights of the applicant or a breach of obligations of the maker to the applicant, it may be inequitable and against good conscience for the maker to assert ownership of the copyright against the applicant and to broadcast the film, and that the maker may be regarded as a constructive trustee of the copyright in favour of the applicant. The Full Federal Court also noted that the respondent made a forensic decision not to invite the primary judge to make any findings as to whether any of the events depicted in the footage amounted to breaches of the criminal law.

The Full Federal Court further made orders requiring the respondent to assign the copyright to the applicant and permanently delete the footage.

The respondent has been granted special leave to appeal to the High Court.  

Implication

Pending the outcome of the High Court appeal, this decision marks a significant expansion in Australia of the scope of equitable remedies available, in providing that a constructive trust can be found in favour of an applicant where a copyright work has been made by a respondent through trespass or other incursions of an applicant's rights. This can also be a useful complementary or alternative remedy in invasion of privacy cases to the new tort of privacy which has recently been introduced in Australia under the Privacy Act 1988 (Cth). 

See case: The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104

Facts

This is an interlocutory proceeding in relation to a documentary film titled "Never Get Busted", intended to premiere at the Melbourne International Film Festival.

The applicant claimed, amongst other things, that the respondents' failure to attribute him as a Principal Director of the film breached his moral rights under the Copyright Act 1968 (Cth). The respondents were the producer and the screenwriter.

The respondents relied on a provision in a director's agreement entered into by the applicant and the producer, which provided that the applicant waived all moral or other similar rights in respect of the film, and that—to the extent the waiver is not enforceable—the applicant unconditionally and irrevocably consents, for the benefit of the producer and all of its assignees, licensees and sublicensees to material alterations to the film for any purpose.

Findings

The Federal Court granted an interim injunction preventing the respondents from screening or otherwise promoting the film unless it (and any promotional materials containing credits) included the credit "Directed by Stephen McCallum" at the exclusion of the second respondent.

In particular, the Federal Court found there is a serious question to be tried as to whether the breadth of the waiver/consent clause is to be read subject to another clause which provides that the applicant will, subject to fulfilling his duties as required by the producer, receive credit as the Principal Director of the film.

The proceedings were listed for trial in September 2025 and the final judgment is pending publication.

Implication

This is one of very few Australian decisions dealing with claims of moral rights infringement and emphasises the importance of having clearly-drafted and legally valid moral rights consents which comply with the specific requirements of the Copyright Act (moral rights waivers not being effective under Australian law).    

See case: McCallum v Projector Films Pty Ltd [2025] FCA 903

The Federal Court has issued a Standard Directions for Australian Patent Proceedings Practice Note, which applies from 8 August 2025 to all Federal Court patent proceedings, whether filed before or after that date.

The Practice Note sets out clear procedural and timing expectations for the parties, including, in particular, the following:

• Applicants should confine allegations of infringement to the minimum possible number of claims and, if possible, one patent. Respondents should confine the number of prior art documents and grounds advanced to the minimum necessary.
• The parties are to file position statements on infringement and validity (separately and respectively), as well as a technical primer and a common general knowledge summary (jointly).
• The parties' expert witnesses are to participate in joint expert conferences and produce a joint expert report, and they are prohibited from communicating with the parties, their lawyers or counsel regarding the case between the commencement of the conferences until the signing of the report, other than with the consent of the other party.
• The parties should discuss before the first case management hearing whether the court need only hear and determine infringement and validity issues with respect to certain exemplar patent claims or products.
• If a party seeks to amend a patent or rely on experimental evidence, these matters should be raised, if possible, at the first case management hearing.
• A trial date would be set no more than 18 months from the date of the first case management hearing.
• For any interlocutory application, the court may direct the parties to file a statement of costs and make a lump sum costs order on deciding the application, payable forthwith within 14 days (rather than at the conclusion of the proceedings), so as to encourage parties to resolve or narrow interlocutory disputes given the immediate financial impact.  

These directions introduce a number of significant new practices, as well as formalise some standard existing practices, and are expected to make patent proceedings in the Federal Court of Australia more efficient, consistent and predictable from a timing and costs perspective.  

On 1 January 2026, Australia adopted a mandatory and suspensory merger control regime with significant implications for a wide range of transactions involving IP.

The new regime applies broadly to 'assets', covering any kind of property, a legal or equitable right that is not property, and any interest in proprietary, legal or equitable rights. This likely covers all types of IP and related rights, including registered and unregistered IP rights, as well as a right to use them, a right to receive a royalty stream, an option or other derivative right and any other contractual right affecting the ownership or control of IP. Any transaction that involves an 'acquisition' of any of these could potentially be a notifiable transaction.

A complex set of rules determine whether a particular transaction is notifiable, which operate by reference to factors such as:

• whether the assets form all or substantially all of the assets of a business
• the Australian revenues of the 'acquirer' and/or 'target'
• the global transaction value.

These rules are also set to change on 1 April 2026. By way of example, if a transaction does not involve the acquisition of assets that form all or substantially all of the assets of a business, from 1 April 2026, a transaction is reportable if:

• the 'acquirer' (eg the assignee or licensee) has Australian revenue exceeding A$200 million, and the global transaction value exceeds A$200 million; or
• the 'acquirer' has Australian revenue exceeding A$500 million, and the global transaction value exceeds A$50 million.

In some circumstances, the 'accumulated acquired shares or assets' test applies. This means that 'serial' transactions may trigger notification if the combined revenue of similar targets acquired by the acquirer or its connected entities in the past three years meets the relevant threshold. However, under the 'small acquisition test', a transaction where the target revenue is less than $2 million is not itself reportable, and does not count towards the 'accumulated acquired shares or assets' test.

For cross-border transactions, the regime will apply if there is an existing 'nexus' to Australia, which in the 'asset' context means the asset is acquired from a body corporate that carries on business in Australia, or the asset is used in, or forms part of, a business carried on in Australia. There is no 'de minimis' threshold to this: for example, a transaction relating to a global patent portfolio will have an Australian 'nexus' if even one patent in the portfolio is used in Australia.

A small number of targeted exemptions apply, but these are narrow in scope. A key one is that an 'acquisition' in the 'ordinary course of business' will not be notifiable. However, this exemption is limited to transactions that are in the 'ordinary course of business' for businesses in general, and in particular does not apply to patents or an interest in patents.  

During the Australian autumn session of Parliament (February to April 2026), it is expected that the Government may tweak certain rules in the regime again.  

The Australian competition regulator (the ACCC) must be notified of transactions that fall within the regime. A waiver system is also available, where a transaction might be technically notifiable but unlikely to raise any competition systems. This is a simpler process than a formal notification, but still requires an official fee to be paid. Significant penalties apply for a failure to notify the ACCC.
Once the ACCC is notified, the acquisition cannot be put into effect until the ACCC's review is complete.
The broad coverage of the new regime affects a range of transactions other than traditional M&A transactions. Businesses should in particular consider transactions that are unlikely to have an established system for considering Australian competition/anti-trust clearance—eg the acquisition of a global trade mark portfolio, entering into a new franchise agreement or replacing an existing patent licence agreement.

Generative AI continued to be a topic of interest in copyright law in 2025.

On 26 October 2025, the Australian Government announced it 'will not be entertaining' a text and data mining (TDM) exception. In many jurisdictions TDM of copyright material is permitted without the copyright owner's consent or payment of additional royalties. A prime example of a TDM activity is the collation of a training data set that can then be used to train or finetune a generative AI model. However, the Australian Government will continue exploring other AI-related copyright law changes such as collective licensing and small claims enforcement.

Meanwhile, several recent international court cases demonstrate the complexities and offer illustrative views on copyright law in relation to the training of generative AI models.

• In the US, two major cases in 2025 involved the unauthorised use of copyright-protected materials in training data for generative AI models: Kadrey v Meta Platforms Inc, Case No 23-cv-03417-VC and Bartz v Anthropic PBC, Case No C 24-05417 WHA. In both cases, the US courts held that training AI models on copyright-protected work, even without permission, could fall within the scope of the US 'fair use' exception to copyright infringement. In the Bartz case, Anthropic ultimately settled the dispute for US$1.5 billion. However, the guidance that can be drawn from these cases in an Australian context is limited, because Australia does not have a general 'fair use' doctrine.
• In the UK, the first instance decision in Getty Images v Stability AI by the High Court of England and Walesoccurred against a legal framework that (on relevant issues) is similar to Australia's. The case concerned Stability AI's image generation tool, Stable Diffusion, which was trained on, and in some circumstances unmistakeably replicated, Getty Images' photos and even watermarks. Getty Images succeeded in establishing that Stability AI had infringed its trade marks present in watermarks. However, Getty Images' copyright infringement actions failed—the development of the training data and training of the Stable Diffusion models all occurred outside the UK (therefore outside the court's jurisdiction) and the Stable Diffusion models themselves were held not to be infringing copies of Getty Images' images, since they contained only weights, not copies of, the images. This case illustrates the issues that are likely to arise in an Australian case.
• Two cases in Germany (which has a TDM exception) had opposing outcomes: in the GEMA v OpenAI  case (Case No. 42 O 14139/24 (LG München I)), the Munich Regional Court determined that the training of generative AI models on song lyrics without a licence was in breach of German copyright law, and was beyond the scope of Germany's TDM exception. By contrast, the Hamburg Higher Regional Court's appellate ruling in the Robert Kneschke v LAION e.V. case (Case No. 5 U 104/24 (OLG Hamburg)) refused injunctive relief against the use of a photographer's work on a stock photo agency's website in a dataset for use in training generative AI programs, because of the TDM  exception. 

There are as yet no cases in Australia on the legality of using copyright material to train generative AI systems. However, the direction of future law reform is becoming clearer, and overseas case law also provides guidance on how an Australian court might approach the issue.

More in-depth analysis of these developments, including the Getty Images decision, can be found in our previous Insight.  

Each of the state Supreme Courts in New South Wales, Victoria and Queensland has now issued practice directions on the use of generative AI in court proceedings.

In New South Wales, the court's practice note was further updated in 2025, including as follows:

• The general prohibition on entering certain information or material into any generative AI program has been loosened, and the entering of such material into a generative AI program is now permitted if the legal practitioner or person responsible for the conduct of the proceeding is satisfied that the information will be protected in certain ways, including that it will remain within the controlled environment of the generative AI platform being used and will not be made publicly available or used to train the generative AI program.
• It is now expressly contemplated that a generative AI program may be used for certain purposes such as generating chronologies, indexes and witness lists, summarising and reviewing documents and transcripts, and (with some limitations) preparing written submissions or summaries of argument.

However, the requirement that authors of written submissions, summaries or skeletons of arguments must verify all citations and references, and the prohibition on the use of generative AI without leave to draft or prepare the content of an expert report or generate the content of affidavits, witness statements or character references, remain the same.

In Victoria, a more liberal approach is adopted, with the court actively encouraging the use of specialised legally focused AI tools, including technology-assisted review for large-scale document review. Nonetheless, the guidelines mandate that the use of AI programs must not mislead other parties or the court as to the nature of the work undertaken, and that parties and practitioners should disclose the use of AI tools.

In Queensland, it is now required that there must be an identified person responsible for the contents of all submissions made to the court, including verifying the 'accuracy and relevance of all references to legislation, authorities and other sources' and ensuring the submissions are 'expressed in terms which reflect their judgement as to the proper discharge of their professional and ethical obligations'.  

The use of generative AI in court proceedings continues to be a focus in Australia and it is encouraging to see the state Supreme Courts taking a flexible and iterative approach that takes into account the evolving and increasingly sophisticated use of generative AI in legal practice.

The Federal Court (the main forum for IP proceedings in Australia) has not yet developed any similar practice directions, although it issued a notice to the profession in April 2025 indicating it was considering and inviting submissions on such directions. 

The Designs Act 2003 (Cth) is poised for one of its most significant overhauls in decades, with long‑anticipated reforms expected to progress to draft legislation in 2026. If adopted, the reforms would:

• formally extend design protection to virtual designs, including graphical user interfaces (GUIs);
• allow partial designs, giving designers the option to protect specific product elements; and
• introduce post‑registration linking, supporting protection for products that evolve through iterations or updates.

Together, these changes aim to modernise Australia’s design system so it can better recognise digital‑first, fast‑moving product development and align more closely with international practice.  

As product differentiation increasingly lies in user experience, animation and continuous iteration, these reforms should be welcome news for design owners.

For further details in relation to these reforms, please see our previous Insights here and here.  

ICIP is an emerging focus area for businesses, as stakeholder expectations shift and international human rights standards continue to evolve. ICIP refers to the rights of Indigenous peoples to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures. ICIP material ranges from intangibles such as language, artistic styles, music, dance and geographical, scientific, agricultural, technical and ecological knowledge to tangibles such as artefacts, burials and sacred sites.

In 2025, the Australian Government appointed an Aboriginal and Torres Strait Islander Expert Working Group to support the development of new, standalone legislation to protect ICIP. The initial focus is to address the harm caused by fake art, merchandise and souvenirs, however it is anticipated that the legislation will ultimately contain broader protections for ICIP.  

The proposed legislation will reflect and build on international law, including:

• the UN Declaration on the Rights of Indigenous Peoples, which was adopted in September 2007 and establishes a universal framework of minimum standards for the survival, dignity and wellbeing of Indigenous peoples; and
• the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, which was adopted in May 2024 and introduces new disclosure requirements for patent applications involving genetic resources and/or associated traditional knowledge.

In the meantime, the use and protection of ICIP in Australia is governed by a patchwork of native title, land rights, environmental, cultural heritage and IP laws. Ownership and use of ICIP may also be governed by contractual provisions.

Businesses dealing with Indigenous organisations and individuals should handle ICIP material with care and ensure that relevant contractual provisions (including any ICIP protocols proposed by another party) are carefully reviewed as they may affect the business' ability to use ICIP material and the ownership and use of any material (and associated IP rights) used or created under the agreement.