This blog was authored by Dr. Mitchell Adams, Senior Lecturer at Swinburne Law School. The views expressed do not necessarily reflect the views or position of IP Australia, and should not be taken as constituting advice. If you require guidance specific to your situation, you should consider seeking professional advice.
While working in intellectual property (IP), I have noticed that many encounter IP infringement in one of two ways: either they get an unexpected letter from a lawyer, or they spot someone using their work without permission. Both situations tend to provoke the same reaction (panic), followed by the question “What do I do now?”
IP infringement has been called many things, from copycatting and ripping off to duping. At its core, IP infringement involves the unlawful use of someone else’s protected IP without permission or a legal defence. From my experience, many people or organisations faced with these issues are unsure of what steps to take or where to turn. More importantly, they often judge whether something is an infringement based on “the vibe” rather than understanding what the law requires.
What is particularly interesting about IP law is that infringement is not just about exact copying, and what constitutes infringement varies for each type of IP right. Whether it's a trade mark that's similar enough to confuse customers, a design that gives the same overall visual impression, or using a substantial part of someone's creative work, the law recognises that you do not need to create an identical copy to be considered infringing. Importantly, these principles then help us understand what IP law aims to protect.
I have always been passionate about teaching IP, which has fortunately become my profession. When asked to create a series of articles on IP infringement, I eagerly accepted the opportunity to provide clear and practical information for everyday Australians.
One of the biggest challenges in creating these guides was striking the right balance. IP law is inherently technical, given the nature of legal definitions and provisions. However, the people who need this information most are often small business owners, entrepreneurs, and creators who do not hold law degrees.
As I worked through each type of IP infringement, from trade marks to plant breeder's rights, I kept asking myself, “Would someone running a café understand this? Could a graphic designer use this information to protect their work?” This helped me to constantly step back from legal jargon and focus on what truly matters: helping people understand their rights and obligations in plain English.
Creating content across the full spectrum of IP rights revealed some recurring themes. For example, infringement may occur when people misunderstand what IP rights actually protect. While writing about trade mark infringement, I was reminded that some might think registering a trade mark provides blanket protection over a word or phrase. In truth, protection is linked to the goods and services listed in the registration, as well as similar goods and services. When working on the copyright article, I kept thinking about how many get caught out by online content. They will grab an image from Google for their website, genuinely believing that if it is online, it must be free to use.
These guides have reminded me why accessible IP education is so important. IP appears in every business, every creative endeavour, and increasingly, every aspect of our digital lives. But it does not need to be intimidating or overwhelming. Every time someone understands their rights, performs a proper search before launching a product, or resolves a dispute through discussion rather than litigation, we are helping to create a healthier IP system for everyone.