Australian IP Law 2025: The Definitive Year-End Review

If you've been following Australian intellectual property law in 2025, you'll know it's been a remarkable year. We've seen:

Three High Court decisions that reshaped trade mark law
A patent revolution on two fronts — software and pharmaceuticals
A copyright reckoning with AI
Sweeping legislative reform across multiple IP areas
133 new IP proceedings in the Federal Court alone

It's been a lot to keep up with. So we've pulled everything together into one comprehensive review.

Whether you're a business owner or just interested in how IP law is evolving, this is your essential guide to Australian IP law in 2025 — and what to watch for in 2026.

The High Court's Trade Mark Trilogy

The High Court handed down three landmark trade mark decisions in 2025, each clarifying fundamental principles about brand protection in Australia.

1. Bed Bath 'N' Table Pty Ltd v Global Retail Brands Australia Pty Ltd (M32-2025) [2025] HCA 50

The headline: You can be sued for misleading consumers even if your brand name isn't "similar" to someone else's registered trade mark.

What happened: Bed Bath 'N' Table Pty Ltd sued a competitor using "HOUSE BED & BATH" for trade mark infringement, misleading conduct, and passing off. The High Court found the competitor had engaged in misleading conduct and passing off, even though their mark wasn't "deceptively similar."

Why it matters: This decision draws a sharp line between trade mark infringement and misleading conduct. They're different legal tests with different requirements. A business cannot hide behind "my mark isn't similar" as a defence to misleading conduct.

The key principle: Reputation is critical for passing off and misleading conduct claims. And "wilful blindness" to consumer confusion is enough for liability — you don't need to prove dishonest intent.

👉 Read our full analysis of this case

2. Taylor v Killer Queen LLC [2026] HCA 5 (Katie Perry / Katy Perry)

The headline: Fame alone doesn't protect your name — reputation must be tied to specific goods and services.

What happened: A fashion designer named Katie Taylor had registered "KATIE PERRY" for clothing. The singer Katy Perry used her stage name on clothing merchandise. The High Court ruled 3:2 in favour of the designer.

Why it matters: The Court clarified that reputation must be tied to particular goods and services. General fame doesn't automatically protect your name for everything. However, if two brand names have coexisted for years without confusion, that's strong evidence they're unlikely to deceive consumers.

👉 Read our full analysis of trade mark law

3. Firstmac Limited v Zip Co Limited [2025] FCAFC 30 (anticipated decision in 2026)

The headline: What does "honesty" mean when a business claims they adopted a name in good faith?

What happened: Firstmac Limited (owner of the trade mark "ZIP" for financial services) sued Zip Co Limited (the Buy Now Pay Later company) for trade mark infringement. The Full Federal Court found infringement and rejected Zip Co Limited's "honest concurrent use" defence.

Why it matters: The High Court has granted special leave to appeal. The decision will clarify what is required to satisfy the "honesty" condition for the honest concurrent use defence. Expected in 2026.

The Patent Revolution

2025 saw two landmark patent decisions that fundamentally changed the landscape for innovation in Australia.

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131: Software Patents Get Easier

The headline: The "advance in computer technology" requirement is officially dead.

What happened: The Full Federal Court formulated a new test for patentability of computer-implemented inventions: an invention is patentable if it implements an abstract idea on a computer to produce an artificial state of affairs and a useful result. The Court expressly stated that an invention does NOT need to be an advance in computer technology.

Why it matters: This is one of the most important patent decisions in Australia in a decade. It removes a major barrier for software and tech startups. The High Court refused special leave, making this test definitive.

The new test in plain English:

❌ NOT patentable: An abstract idea merely manipulated on a computer
✅ Patentable: An abstract idea implemented on a computer to produce a useful result

👉 Read our full analysis of software patents

Otsuka Pharmaceutical Co Ltd v Sun Pharma ANZ Pty Ltd [2025] FCAFC 161: Pharmaceutical PTEs Upended

The headline: Only APIs (not formulations) qualify for patent term extensions.

What happened: The Full Federal Court unanimously held that only active pharmaceutical ingredients (APIs) meet the statutory definition of "pharmaceutical substance." Formulations — the complete medicine as patients take it — do not qualify for PTEs. This overturns nearly 20 years of authority.

Why it matters: Many existing PTEs are now vulnerable to challenge. IP Australia has paused processing PTE applications. Otsuka Pharmaceutical Co Ltd has sought special leave to appeal to the High Court.

The impact: Pharmaceutical companies must urgently review their Australian patent portfolios. Generic manufacturers may now challenge PTEs they previously couldn't touch.

👉 Read our full analysis of pharmaceutical patents

Copyright: Trespass, Mods, and Moral Rights

Game Meats Company of Australia v Farm Transparency International Ltd [2025] FCAFC 104: Constructive Trusts Over Footage

The headline: Trespassers may lose copyright in footage created through their wrongdoing.

What happened: Farm Transparency International Ltd trespassed onto Game Meats Company of Australia's abattoir premises, filmed activities, and published the footage claiming it showed animal cruelty. The Full Federal Court imposed a constructive trust over the copyright, granted an injunction against publication, and ordered deletion of the footage.

Why it matters: This is a powerful new tool for property owners. If someone trespasses and creates footage, the court may impose a constructive trust, meaning the trespasser holds the copyright on trust for the property owner.

👉 Read our full analysis of this case

Motorola Solutions v Hytera Communications [2025] FCAFC 168: Software Copyright Infringement Analysed

The headline: How Australian courts decide if software has been copied — even when evidence has been deleted.

What happened: Motorola Solutions sued Hytera Communications for copyright infringement in firmware source code. Hytera Communications had employed Motorola Solutions engineers, deleted evidence, mixed copied code with its own, and transformed the code into object format. The Full Federal Court upheld the infringement finding and provided crucial guidance on how software copyright infringement is analysed.

Key principles:

Evolved software versions can be protected
The totality of copied code matters, not individual snippets
Creative contribution, not functional importance, determines substantiality
Destroying evidence will be met with adverse inferences

👉 Read our full analysis of this case

Take-Two Interactive Software, Inc v Anderson (GTA V Modders): TPM Enforcement

The headline: Distributing game modification tools breaches technological protection measure rules.

What happened: Take-Two Interactive Software (maker of GTA V) sued a modder who distributed tools that circumvented the game's technological protection measures (TPMs). The Federal Court found the modder breached TPM trafficking provisions.

Why it matters: This is the first Australian judgment on TPM provisions since they were amended in 2006. It's a useful authority for game and software developers.

This is an oldie case, but still a good one, and still relevant given the ongoing modding scene. Yes, I cheated, as it isn't part of 2025. Well done to those who were paying attention!

McCallum v Projector Films Pty Ltd: Moral Rights in Film

The headline: Moral rights waivers must comply with specific statutory requirements.

What happened: A documentary film director claimed his moral rights were breached when he wasn't credited as Principal Director. The Federal Court granted an interim injunction requiring the film to include his credit.

Why it matters: This is one of very few Australian decisions dealing with moral rights infringement. It emphasises the importance of clearly-drafted moral rights consents.

AI and Copyright: Australia Says No to TDM

The headline: Australia will not introduce a text and data mining exception for AI training.

What happened: On 26 October 2025, the Australian Government announced it "will not be entertaining" a TDM exception. AI companies cannot use copyrighted material for training without permission.

Why it matters: This places Australia at odds with the US, EU, UK, and Japan. AI companies operating in Australia must obtain licences for training data. Creators have greater control over their work. The government will continue exploring collective licensing models.

👉 Read our full analysis of AI and copyright

AI in the Courts

State Supreme Courts in NSW, Victoria, and Queensland have all issued practice directions on the use of generative AI in court proceedings. NSW has loosened restrictions, Victoria encourages specialised AI tools, and Queensland requires identified responsibility for AI-generated content.

Legislative and Regulatory Reform

2025 saw significant legislative developments, with major changes taking effect or expected in 2026.

Mandatory Merger Control (from 1 January 2026)

The headline: All IP transactions may now require ACCC approval.

What happened: Australia adopted a mandatory and suspensory merger control regime. It applies to "assets" — a broad definition that includes all forms of IP: registered and unregistered rights, licences, royalty streams, and contractual rights affecting IP.

Why it matters: This affects far more transactions than most businesses expect. Patent licences, trade mark assignments, franchise agreements, and software licences may all require notification. Significant penalties apply for non-compliance.

👉 Read our full analysis of merger control

Designs Act Reform (draft legislation expected 2026)

The headline: GUIs, partial designs, and virtual designs will be protectable.

What happened: Long-anticipated reforms to the Designs Act 2003 are expected to progress to draft legislation in 2026. The reforms will:

Extend protection to GUIs (graphical user interfaces)
Allow partial designs (protecting specific product elements)
Protect virtual designs (digital-only products)
Introduce post-registration linking (for iterative updates)

Why it matters: This is the most significant overhaul of Australia's designs system in decades. It will benefit app developers, gaming companies, e-commerce businesses, and anyone who invests in product design.

👉 Read our full analysis of designs reform

ICIP Legislation (in development)

The headline: Australia is developing its first standalone law to protect Indigenous cultural and intellectual property.

What happened: An Aboriginal and Torres Strait Islander Expert Working Group was appointed to develop ICIP legislation. The initial focus is on fake art and merchandise, but broader protections are anticipated.

Why it matters: Businesses dealing with Indigenous organisations or using Indigenous cultural material must prepare for new obligations around consent, benefit-sharing, and cultural sensitivity.

👉 Read our full analysis of ICIP

IP Australia Annual Report 2024–25

The highlights:

Design rights filings up 8.9% — reaching new highs
Standard patent filings down 3.3% (fewer non-resident applications)
Resident patent filings rose slightly
133 new IP proceedings commenced in the Federal Court
Trade marks were the most popular subject matter, followed by copyright

Looking Ahead to 2026

Sectors to Watch

The Federal Court's IP year in review calls out two new sectors where IP disputes are likely to intensify:

Critical minerals — IP providing critical competitive advantage
Electric vehicles — Intensifying commercial competition

Pharmaceutical and biotechnology disputes are expected to continue at steady levels.

Legal Developments to Watch

High Court decisions in Firstmac Limited v Zip Co Limited and Game Meats Company of Australia v Farm Transparency International Ltd
High Court decision on Otsuka Pharmaceutical Co Ltd v Sun Pharma ANZ Pty Ltd (special leave consideration)
Designs Act reform progressing to legislation
ICIP legislation development
Federal Court trade mark streamlining measures
ACCC merger control enforcement activity

Trends to Watch

Deepening impact of AI on IP disputes — procurement contracts, data use, AI-generated content ownership
Online anti-counterfeiting — especially AI-generated deepfakes
Growth of foreign e-commerce platforms and influencer marketing
Increasing globalisation of IP filing profiles
More selective enforcement and sharper competition

Practical Recommendations for Businesses

IP Portfolio Management

Review all patent portfolios, especially PTEs
Assess trade mark clearance for all new brands
Document reputation and creative development
Establish merger control assessment processes

Compliance and Risk Management

Implement merger notification processes for IP transactions
Review all licences and franchise agreements
Establish AI usage policies
Review contracts involving Indigenous cultural material

Litigation Preparedness

Document retention policies for software and creative works
Expert witness identification and preparation
Settlement strategy development
Cross-border enforcement planning

The Bottom Line

2025 was a transformative year for Australian IP law. The High Court clarified fundamental principles in trade marks. The Full Federal Court reshaped patent law on two fronts. Copyright law expanded through equitable remedies. AI and copyright collided head-on. Legislative reform is accelerating.

2026 promises to be equally dynamic. The businesses that stay informed and proactive will be best positioned to navigate the evolving landscape.

If you've found this review useful, we've published detailed analysis of each major development. Use the links above to dive deeper into the topics that matter most to your business.

This article is for general information only and does not constitute legal advice. If you have questions about Australian IP law for your business, consult a qualified intellectual property lawyer.