When you’re running a business, thinking about someone else’s rights may not be your top priority. However, breaching intellectual property rights can have significant consequences. When the cheques start rolling in, someone’s claim to your intellectual property (IP) may take your hard-earned money away. This article outlines how to identify whether you’re breaching intellectual property rights before it’s too late.

Know Your Intellectual Property Rights

The first step is to determine what type of intellectual property rights you have. IP is an umbrella term used for different types of original ‘property’. This can be a name, an image, a product, technology, or even the know-how of your business. But just because you use it, does not mean it belongs to you. If you created it yourself, paid for it to be designed or bought the rights from someone else, then it most likely belongs to you.

However, IP may not belong to you if you:

  • used an online template;
  • don’t have the formal registration; or
  • paid for a licence rather than the exclusive rights.


Copyright exists in any original work. You may be infringing on someone else’s copyright if you copy, alter, or use their work. In some cases, using something just as inspiration may be too much. Contrary to popular belief, there is no 10% rule to avoid copyright infringement. The legal test is whether you are reproducing a substantial part of the original work. If you’re trying to work out whether or not you have infringed someone’s copyright, consider whether there are any elements of their work that are blatantly obvious in yours.


A patent can protect a device, substance, method or process that is new and inventive. Depending on the type of patent that covers the invention, the applicant will own the exclusive rights for 8 to 20 years. If you’re manufacturing something that is similar to an existing product, it’s a good idea to conduct a Freedom to Operate Search. If your invention acts and functions in the same way as the original product, you may be breaching a patent. As patenting is a very specialised field, it is important to seek the assistance of a patent attorney when comparing your invention to an existing product.


Design registration protects the visual appearance of a product, rather than the way it works. You can only enforce designs certified by IP Australia. If you have based your designs on someone else’s work, you could be breaching their intellectual property. Even if you have created it yourself, check the IP Australia Design Register first.

Trade Marks

A trade mark is any sign, such as a name, logo, or slogan, used to distinguish a product or service. If your new business sign seems strikingly similar to someone else’s, it’s a good idea to check the Trade Mark Register.

However, some trade marks are not registered but the owners still have rights under common law. It is more difficult to determine whether you are infringing on an unregistered trade mark but the best thing to do is to come up with a unique sign that everyone will associate with your brand. The best trade marks are ones that are distinctive and unusual for their industry. It makes them less likely to be copied by (or to be a copy of) another a trade mark, and more likely to be approved for registration by IP Australia.

Public Domain and Creative Commons

The internet makes it easy to breach intellectual property rights with everything available at a click of the mouse. This does not mean that everything on the internet is free. However, certain material has been released into the public domain and is free to use. You may even find some work available under a Creative Commons licence. Creative Commons is an international not-for-profit organisation that provides a platform for intellectual property owners to share their work with the public by way of a licence.

Key Takeaways

Do your homework. Before you start promoting your brand or labelling your products, take the time to research the patent, design, and trade mark registers to make sure your idea is original.

Go for inspiration, not duplication. If you have an idea based on someone else’s work, make sure that it is not a substantial reproduction.

When in doubt, ask for help. If you’re not sure whether you’re in breach of someone’s intellectual property rights, get in touch with LegalVision’s IP lawyers by calling 1300 544 755 or by filling out the form on this page.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Alexandra Shaw
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy