——— IP litigation and disputes · Brisbane
IP litigation lawyers Brisbane
Defending or enforcing your business's intellectual property rights in copyright, trade marks, patents and confidential information can be critical for success.
$200k+
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Direct Line – Brisbane
Reviewed by Malcolm Burrows, Legal Practice Director · Last updated 29 October 2026
——— Quick summary
Quick summary of IP litigation
IP litigation is a dispute between competing holders of intellectual property (IP) rights in confidential information, copyright, trade marks, patents or registered designs. The rights holder must prove the elements of that right to a Court. Dundas Lawyers® acts for businesses in Brisbane and Australia-wide to enforce and defend their IP rights, inside and outside the courtroom.
On this page
- What is IP litigation?
- Our IP litigation services
- What must you prove in an IP litigation claim?
- What if you are accused of IP infringement?
- Key takeaways about IP litigation
- Why choose Dundas Lawyers for IP litigation?
- Examples and case law about IP litigation
- Recent videos about IP litigation
- Frequently asked questions about IP litigation
- Legislation for IP litigation
- Need a lawyer in Brisbane to advise on IP litigation?
- Recent insights about IP litigation
- Recent Federal Court decisions about IP litigation
——— Definition
What is IP litigation?
IP disputes are generally thought of as a battle of competing rights holders.
The rights in question range from confidential information, registered and unregistered trade marks, patents, registered designs and copyright, which can be both registered and unregistered.
Defending or enforcing your business's IP rights in copyright, trade marks, patents and confidential information can be critical for success. IP is the new millennium battleground where the fight for competitive advantage can be won or lost.
Dundas Lawyers® are experts in IP disputes including (but not limited to):
——— Our services
Our IP litigation services
Dundas Lawyers® acts in IP disputes about breach of confidence, copyright, trade marks, patents and registered designs, each covered on its own page below.
Dundas Lawyers® acts for businesses to identify, enforce and defend their IP rights and has acted for a range of businesses to defend or enforce these rights inside and outside of the courtroom. We also have experience in advising on related causes of action that are often associated with IP disputes including passing off, misleading and deceptive conduct and false and misleading statements under the Australian Consumer Law and breaches of directors' duties.
01
Breach of confidence
A business may have a claim for breach of confidence where confidential material is used, copied, disclosed or retained without its authority.
02
Copyright infringement
A business may have a claim for copyright infringement where another party reproduces, publishes, communicates, adapts or otherwise uses copyright-protected material without permission.
03
Trade mark infringement
A trade mark infringement claim may arise where a person uses a sign as a trade mark that is substantially identical with, or deceptively similar to, a registered trade mark.
04
Patent infringement
To establish infringement, the patent owner (or an exclusive licensee) must prove that the product which is alleged to infringe takes all of the essential integers of the claims of the patent.
05
Design infringement
A person will infringe a registered design if they make, import, or sell products that use a design that is identical or substantially similar in overall impression to the registered design.
06
Related causes of action
Passing off, misleading and deceptive conduct and false and misleading statements under the Australian Consumer Law and breaches of directors' duties are often associated with IP disputes.
——— Legal test
What must you prove in an IP litigation claim?
What an IP rights holder has to prove to a Court depends on the right in question, from confidential information and copyright to trade marks, patents and registered designs.
We try to write in plain English, however because we are lawyers we consider that it may be useful to provide a summary of the things that an IP rights holder has to prove to a Court to be successful in the prosecution of an IP claim as follows:
Breach of confidence
A breach of confidence can be either contractual, statutory, equitable or all of these. To establish a breach of confidence, a business wanting to protect its confidential information must:
- particularise with some precision the exact nature of the confidential information that is said to have been misused;
- plead how the confidential information was kept confidential, how the respondent(s) knew or should have known that it was confidential and the steps that had been taken to keep it strictly confidential;
- describe the basis (contractual, statutory, equitable) that the confidential information was to be kept confidential by the respondent(s); and
- plead that the respondent(s) were under a duty not to use or disclose the confidential information for their own benefit or the benefit of a third party.
Read more about breach of confidence.
Breach of copyright
The elements to be satisfied for the copyright owner to establish a breach of copyright will of course depend on the type of copyright works (Works) that have been infringed – various classes of literary works, computer code, compilations of data, and artistic works for example. Generally, however, the owner of the copyright must:
- particularise the specific works that are alleged to have been infringed by the respondent(s);
- establish ownership and originality of the works in question;
- state how the works were first published in Australia;
- state how the works in question have been infringed within the meaning of the Copyright Act 1968 (Cth);
- state how the infringement amounted to a substantial reproduction of the Works in question;
- particularise how the applicant(s) has or will suffer loss and damage because of the infringement; and
- include any additional circumstances that give rise to additional damages for flagrancy because of the acts of the respondent(s).
The above is a summary only as each case rests on its own facts. Read more about breach of copyright.
Trade mark infringement
To establish infringement of a registered trade mark the owner must:
- state the trade mark in question that has been infringed, prove that it is the owner and state the date on which it was first used;
- show how the applicant has acquired a reputation associated with the trade mark in question;
- show how the applicant has used the trade mark in conjunction with its business to promote its goods or services; and
- state how the alleged infringer's conduct in using the mark to promote its goods or services is substantially identical or deceptively similar to the applicant's registered trade mark.
Of course, the above is a general summary only. For more about trade mark infringement read our page on trade mark infringement.
Patent infringement
Generally, to establish infringement of an Australian registered innovation or standard patent the applicant must:
- describe the patent in question that is valid and subsisting, its priority date and complete information about its ownership;
- describe the claims of the patent in suit, the dates when products were marked with the patent in suit that embody the integers of the patent(s);
- describe whether or not the patent in suit was certified (in the case of an innovation patent); and
- particularise how the respondent(s) has infringed the patent in suit by promoting and selling a product that contains the essential integers of the claims of the patent in suit.
Infringement of registered design
To establish infringement of an Australian registered design, the applicant must:
- provide complete information about the owner of the registered design in suit; and
- describe the registered design including its registered design number, its filing date, the registration date and the date on which it was certified.
Read more about infringement of a registered design.
——— Defending a claim
What if you are accused of IP infringement?
A business accused of patent infringement may cross claim that the patent in suit should never have been granted in the first place.
Patent revocation
In defending allegations of patent infringement it is not unusual for the respondent to cross claim against the applicant alleging that the patent in suit should never have been granted in the first place. The grounds that a patent can be revoked in this way are not closed but generally mirror the threshold requirements for registration of the respective patent in the first place.
To read more about patent infringement or cross claiming because the patent in suit should never have been granted (revocation) in the first place see our page on patent infringement.
Speak with an IP litigation lawyer
Talk to our IP litigation lawyers about enforcing or defending your business's IP rights.
or email us at service@dundaslawyers.com.au
——— Key takeaways
Key takeaways about IP litigation
- IP disputes are generally thought of as a battle of competing rights holders, with rights ranging from confidential information to trade marks, patents, registered designs and copyright.
- Dundas Lawyers® acts for businesses to identify, enforce and defend their IP rights, and advises on related causes of action such as passing off, misleading and deceptive conduct and breaches of directors' duties.
- What an IP rights holder must prove depends on the right; for copyright, for example, the owner must establish ownership and originality of the works and show a substantial reproduction.
- A respondent to a patent infringement claim may cross claim to revoke the patent, on grounds that generally mirror the threshold requirements for registration.
- Dundas Lawyers® has acted in Federal Court IP decisions on copyright, confidential information, trade marks, patents, registered designs, website blocking orders and corrective advertising orders.
——— Why Dundas Lawyers
Why choose Dundas Lawyers for IP litigation?
Clients choose Dundas Lawyers® for our uncommon business acumen and our uncommon expertise in all types of IP litigation.
Having exerted Blood Sweat and Years® since April 2010 we are the team you want on your side for the long term to act as the 'bodyguard' for your business to protect its intellectual property and stand up for your rights. Some of the reasons clients choose Dundas Lawyers® include:
- our Uncommon business acumen;
- our Uncommon expertise in all types of IP litigation;
- our Uncommon expertise in transactional, compliance and litigious matters;
- our Uncommon customer focus;
- the fact that we don't just know law, we know business!
- how we leverage our Uncommon Nous® to provide client centric solutions.
——— Examples and authorities
Examples and case law about IP litigation
Court decisions involving Dundas Lawyers
Dundas Lawyers® have expertise in both initiating and defending for all types of intellectual property. Our list of decisions and the subject matter is as follows:
- Native Extracts Pty Ltd v Plant Extracts Pty Ltd (No 2) [2024] FCA 106 – copyright, literary and artistic works, confidential information, breach of directors' duties, breach of contract, misleading and deceptive conduct, false and misleading statements;
- Native Extracts Pty Ltd v Plant Extracts Pty Ltd [2023] FCA 1265 – corrective advertising orders;
- Gardner Industries Pty Ltd as trustee for the S M Gardner Family Trust v Telstra Corporation Limited [2021] FCA 294 – website blocking orders, copyright, literary and artistic works, compilations of data, computer code;
- Campbell v Sutherland [2020] FCA 765 (25 May 2020) – trade marks;
- Hill & Smith Holdings PLC v Safe Barriers Pty Ltd (No 2) [2020] FCA 8 (8 January 2020) – patents, confidential information;
- Hill & Smith Holdings PLC v Safe Barriers Pty Ltd [2018] FCA 1882 (27 November 2018) – disputed discovery in patents matter;
- Multisteps Pty Ltd v Specialty Packaging Aust Pty Ltd [2018] FCA 587 (2 May 2018) – patents and registered designs; and
- Motorcycle Aftermarket Spares Pty Ltd v Tamworth Cycle Tune Pty Ltd [2014] FCA 1433 – copyright, literary and artistic works.
Further reading
- Proving patent infringement – what a patent owner has to prove in Australia. See: How do you prove patent infringement in Australia?
- Copying – how much copying leads to copyright infringement. See: How much copying leads to copyright infringement?
- Confidential information – contractual and equitable obligations of confidence. See: Contractual and equitable obligations of confidence
- Trade marks – an introduction to trade mark infringement in Australia. See: What is trade mark infringement in Australia?
- Patent revocation – how a granted patent can be revoked. See: Understanding patent revocation
Recent videos about IP litigation
——— Frequently asked questions
Frequently asked questions about IP litigation
What is an intellectual property dispute?
An intellectual property dispute, or IP dispute, is generally thought of as a battle of competing rights holders. The rights in question range from confidential information, registered and unregistered trade marks, patents and registered designs to copyright. Dundas Lawyers acts for businesses to identify, enforce and defend their IP rights, both inside and outside of the courtroom.
What must a business prove to establish a breach of confidence?
A breach of confidence can be contractual, statutory, equitable or all of these. To establish a breach of confidence, a business must particularise the confidential information said to have been misused, plead how it was kept confidential and how the respondent knew or should have known it was confidential, describe the basis on which it was to be kept confidential, and plead a duty not to use or disclose it.
What must a copyright owner prove to establish copyright infringement?
What must be proved depends on the type of copyright works infringed, such as literary works, computer code, compilations of data and artistic works. Generally the owner must particularise the works, establish ownership and originality, state how the works were infringed within the meaning of the Copyright Act 1968 (Cth) and how the infringement amounted to a substantial reproduction, and particularise its loss and damage.
What must be proved to establish patent infringement in Australia?
Generally, to establish infringement of an Australian standard or innovation patent, the applicant must describe the patent in suit, which must be valid and subsisting, its priority date and its ownership, describe the claims of the patent, and particularise how the respondent infringed the patent by promoting and selling a product that contains the essential integers of the claims of the patent.
Can a patent be revoked if you are accused of patent infringement?
In defending allegations of patent infringement it is not unusual for the respondent to cross claim against the applicant alleging that the patent in suit should never have been granted in the first place. The grounds on which a patent can be revoked in this way are not closed, but generally mirror the threshold requirements for registration of the patent.
Does Dundas Lawyers act in IP litigation in the Federal Court?
Yes. Dundas Lawyers has acted in Federal Court IP decisions about copyright, confidential information, trade marks, patents, registered designs, website blocking orders and corrective advertising orders. It acts for businesses initiating or defending IP disputes, and advises on related causes of action such as passing off, misleading and deceptive conduct and breaches of duties by directors.
——— Legislation
Legislation for IP litigation
Australian intellectual property legislation includes:
- Copyright Act 1968 (Cth)
- Copyright Regulations 2017 (Cth)
- Designs Act 2003 (Cth)
- Designs Regulations 2004 (Cth)
- Patents Act 1990 (Cth)
- Patents Regulations 1991 (Cth)
- Plant Breeder's Rights Act 1994 (Cth)
- Plant Breeder's Rights Regulations 1994 (Cth)
- Trade Marks Act 1995 (Cth)
- Trade Marks Regulations 1995 (Cth)
——— Contact
Need a lawyer in Brisbane to advise on IP litigation?
For a confidential, no obligation initial telephone call to find out how we can help your business gain an uncommon advantage in initiating or defending an IP dispute in an Australian Court please phone our team on either 1300 386 529 or 07 3221 0013.
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Complete the form below and we will respond to your inquiry within one (1) business day from the moment you press Submit.
Disclaimer
This page contains general commentary only about IP litigation and disputes. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
Recent insights about IP litigation
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Mere puffery vs misleading and deceptive conduct – where is the line
In the case of Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 (ACCC v TPG), the High Court of Australia (High Court) drew a distinction between mere puffery and representations with the intention of marketing. This article explores the decision in ACCC v TPG and the distinction between puffery and…
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Contractual and equitable obligations of confidence
This is an update to the article “Full Court clarifies confidentiality of supplier and contact info” published by Dundas Lawyers on 24 February 2026. On 20 April 2026, the Full Court of the Federal Court of Australia (Court) allowed an appeal in the case of New Aim Pty Ltd v Leung (No 4) [2026] FCAFC…
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Designer wins High Court case over Katy Perry trade mark dispute
On 11 March 2026, the High Court of Australia (High Court) delivered its judgment in the case of Taylor v Killer Queen, LLC [2026] HCA 5 (Taylor v Killer Queen), ending the seventeen (17) year trade mark dispute between pop star Katy Perry and Australian fashion designer Katie Jane Taylor. In a 3:2 majority decision,…
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Full Court clarifies confidentiality of supplier and contact info
For the latest update on this case and the current position of Australian Courts regarding confidential information obligations, see the article “Contractual and equitable obligations of confidence” published by Dundas Lawyers on 1 September 2026. On 10 May 2023, the Full Court of the Federal Court of Australia (Full Court) delivered its judgment in the…
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Proposed changes to copyright for orphan works
On 5 November 2025, the Copyright Amendment Bill 2025 (Cth)(Bill) was introduced to the Federal Parliament to amend the Copyright Act 1968 (Cth)(Copyright Act). The media release to the Bill explained that it proposed two (2) reforms to the Copyright Act by establishing Australia’s first statutory “orphan works” scheme and clarifying the permitted use of…
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Canva – who owns the artwork created by users?
The general rule about ownership of copyright in a literary or artistic work is that copyright vests in the ‘original author’, as per section 35(2) of the Copyright Act 1968 (Cth) (Copyright Act). From there, ownership depends on whether or not the original author is doing the work within the scope of their employment, in…
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Cross-border licensing – Maxim Media Inc. v Nuclear Enterprises
The Federal Court decision in Maxim Media Inc. v Nuclear Enterprises Pty Ltd [2024] FCA 1443 involved an interlocutory application seeking injunctive relief by Maxim Media Inc. and Maxim Inc. (together, Maxim) (Applicants) for alleged breaches of sections 18 and 29 of the Competition and Consumer Act 2010 (Cth), passing off and infringement of a…
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IP Australia follows Madrid Goods and Services list
From 26 March 2024, IP Australia has implemented the internationally recognised Madrid Goods and Services list (Madrid List), replacing the AU Goods and Services Picklist.[1] The adoption of the Madrid List comes as Intellectual Property Australia (IP Australia) seeks to align the Australian classification standards with the other intellectual property offices around the world.
Recent Federal Court decisions about IP litigation
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WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 7) [2026] FCA 423
PRIVILEGE – legal professional privilege – advice privilege – where parties sought to establish a venture capital fund investment – where lawyers consulted in relation to the establishment and operation of the fund – where dispute as to which parties were the lawyers’ client – whether documents subject to legal professional privilege – whether documents…
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Kutti Bay Investments Pty Ltd v Rattlejack Innovations Pty Ltd [2026] FCA 422
PRACTICE AND PROCEDURE – interlocutory application for declaration that the applicant’s application to amend patents in suit is an abuse of process – whether the proposed amendments are seeking to circumvent earlier decisions of the Court with respect to related patents in the same patent family – held: application allowed in part
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The NOCO Company v Brown and Watson International Pty Ltd [2026] FCAFC 44
PATENTS – appeal from decision of primary judge dismissing applicant’s claim of infringement of patents for jump starter device, declaring patents to be invalid and revoking patents – whether primary judge erred in finding that certain claims would have been obvious to a person skilled in the art in light of the common general knowledge…
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Black Star Pastry Pty Ltd v Richards (No 2) [2026] FCA 383
TRADE MARKS – whether one of two joint owners of a trade mark can apply for registration of the trade mark in own name under section 27 Trade Marks Act 1995 (Cth) – where section 28 Trade Marks Act 1995 (Cth) permits registration of trade mark by joint owners – where section 20(5) Trade Marks…
