Intellectual Property Litigation: Navigating the US, UK, and Australia

Intellectual property rights can make or break your business; from proprietary software that keeps you racing ahead of competitors, to a branding suite that ensures your company is known across the globe. 

With this in mind, the assertion and protection of your intellectual property rights is critical. Doing so, however, requires an understanding firstly of your IP, secondly, how to protect it, and thirdly, how it operates cross-jurisdictions.

Intellectual property (IP) is the legal backbone of innovation, covering everything from code and algorithms to designs, trademarks, and creative works. How these rights are enforced and protected is evolving fast across key markets.

Recent years have seen courts grapple with emerging challenges such as AI-generated content, digital brand misuse, and global enforcement of design and patent rights.

In the UK, for instance, Getty Images (US), Inc & Ors v Stability AI Ltd [2025] EWHC 2863 (Ch) tested whether training AI models on copyrighted images counted as infringement. While the court ultimately ruled that AI training outside the UK fell outside local copyright law, it left a clear message for businesses: know where your data comes from and where your models are trained.

In the US, Hermès International v Rothschild, No. 22-cv-384 (S.D.N.Y. 2023), appeal pending illustrated how trademarks now extend into virtual goods like NFTs.

And in Australia, Hytera Communications Corporation Ltd v Motorola Solutions Inc [2024] FCAFC 168 showed how courts approach overlapping copyright and patent rights in tech-driven disputes.

For founders and growing companies, these cases underline a simple truth: your IP is global, even if your company isn’t. Decisions made in one market,  about data, AI models, or brand use, can have consequences in another.

This guide outlines the key types of IP every founder should understand and how recent legal developments show why protecting your innovation and brand has never been more important.

Intellectual property: a brief recap

Intellectual property (sometimes simply referred to as "IP") is often considered one of the most critical assets of any enterprise. It covers the creations of the mind,  inventions, source code, artistic works, brand names, product designs, and trade symbols that give your business its unique edge.

Intellectual property falls into several types: copyright, patents, trademarks, trade secrets, and designs.

Each serves a unique purpose: copyrights protect original works of authorship like source code, books, and music; patents shield new inventions; trademarks distinguish brand identities; trade secrets protect confidential know-how and algorithms; and designs focus on the physical or visual appearance of a product.

While these rights are protected, their enforcement is primarily conducted through litigation, which can vary significantly depending on the jurisdiction - something we'll get into in detail later. However, let's start by exploring the differences between copyright, patents, trademarks, and designs.

Copyright

At its core, copyright describes the rights that creators have over their literary and artistic works. It applies to everything from software code and product manuals to music, films, and artwork.

These rights offer creators incentives in the form of recognition and fair financial rewards, which can encourage continuous creativity and innovation.

Copyright protection is extensive, lasting for the life of the author plus 70 years in the UK, EU, and Australia. In the US, it lasts life + 70 years for individual authors, or 95 years from publication (or 120 years from creation) for works made for hire or anonymous/pseudonymous works.

It’s worth noting that copyright only protects expression, not ideas, methods, or systems. This distinction is becoming increasingly relevant in AI-related cases such as Getty Images (US), Inc & Ors v Stability AI Ltd [2025] EWHC 2863 (Ch), where courts assess whether AI-generated outputs reproduce protected expression or merely imitate artistic style.

Patents

Patents protect inventions, giving inventors exclusive rights to use, make, and sell their creations. This legal framework ensures that those who invest time and resources into innovation can reap the benefits of their labour. 

The process of obtaining a patent can be rigorous. Applicants need to ensure that the invention:

1. is novel
2. involves an inventive step, and;
3. is capable of industrial application.

These requirements ensure the protection of only genuinely innovative concepts. 

In short, patent protection is reserved for genuinely new and useful ideas. For founders, a strong patent can create a commercial moat, attract investors, and increase company valuation, but it also comes with scrutiny. Competitors can challenge patents through mechanisms such as inter partes reviews (IPRs) in the US or opposition proceedings in Europe and Australia, which can quickly invalidate weak filings.

Patent law is also being reshaped by technology. The UK Supreme Court in Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49 confirmed that only a natural person, not an AI system, can be named as an inventor. For businesses using AI in R&D, this isn’t just a legal curiosity: it affects who owns the IP.

If your product development involves AI tools, you need to clearly identify and document the human contributors. Without that clarity, you could lose ownership of key patents or face future disputes over inventorship.

Globally, patent systems are also becoming more interconnected. In the US, inter partes reviews have become a standard defensive tactic, while Europe’s Unified Patent Court allows central enforcement or revocation across multiple EU countries.

The takeaway: treat inventorship and ownership as core governance issues, not paperwork. The clearer your IP chain of title, the stronger your protection, and your company’s value.

Trademarks

Trademarks define your brand’s identity, the name, logo, slogan, colour, or even sound that sets your product or service apart. They are what customers recognise and trust, and what investors see as proof of brand strength.

In most markets, protection comes through registration with the relevant IP office, such as the UKIPO, IP Australia, or USPTO.

When you consider international markets, each country has its own nuances for trademark protection and registration. In the UK, they’re governed by the Trade Marks Act 1994; in Australia, by the Trade Marks Act 1995; and internationally, businesses can use the Madrid Protocol to secure protection across multiple jurisdictions through a single application.

Recent cases show how courts are adapting trademark law to digital realities.

• Hermès International v Rothschild (MetaBirkin) No. 22-cv-384 (S.D.N.Y. 2023), appeal pending confirmed that virtual goods like NFTs can infringe trademarks when they create consumer confusion about endorsement or origin.
  
  
• Lidl Great Britain Ltd & Anor v Tesco Stores Ltd & Anor [2024] EWCA Civ 262 reaffirmed that even supermarket colour schemes and shapes can mislead consumers, reinforcing that “look and feel” elements are protectable.

Trademark disputes often arise when competing businesses use similar marks, names, or imagery that could lead to confusion or dilute established brand identity.

Globally, brand enforcement is becoming increasingly complex due to online marketplaces, domain names, and social-media use. For businesses of all sizes, trademark strategy is both legal and commercial, it protects customer trust, sustains brand reputation, and underpins long-term value across both physical and digital markets.

Designs

Designs protect the visual appearance of products, their shape, configuration and surface decoration. They can apply to everything from a smartphone’s outline to the packaging of a premium liqueur.

For businesses, design protection is an often underused but powerful tool in the IP portfolio. It safeguards the distinctive look and feel of a product, its packaging, or brand assets that customers instantly associate with your company.

In the UK, registered designs are governed by the Registered Designs Act 1949 (as amended), while unregistered design right is provided under Part III of the Copyright, Designs and Patents Act 1988. Similarly, the US protects design patents for the ornamental features of a product (typically lasting up to 15 years), while Australia offers registered design rights under the Designs Act 2003.

Recent developments highlight the growing importance of design rights across key markets:

• Marks & Spencer plc v Aldi Stores Ltd [2023] EWHC 178 (IPEC) confirmed that Aldi’s “light-up” gin bottle infringed M&S’s registered design, a clear signal that courts will act decisively against look-alikes.
  
  
• Across the EU, 2024–25 reforms modernised design protection for digital and virtual assets, while the UK considers its own review, potentially widening the differences between the two regimes.

Business takeaways:

• File early and broadly. Even if a product will evolve, register a core design before launch; public disclosure can limit the scope of protection.
  
  
• Think internationally. Register designs in all key markets (UK, EU, US, Australia) since unregistered rights vary and may not offer strong cross-border enforcement.
  
  
• Act quickly against look-alikes. Where a product’s design is distinctive, enforcement through design rights can be faster and more direct than trademark or passing-off claims, as M&S v Aldi demonstrates.
  
  
• Keep thorough records. Maintain design files, prototypes, and documentation. These are essential when establishing originality or “overall impression” in a dispute.
  
  
• Integrate design strategy early. Involving legal and creative teams during product development strengthens protection from the outset and supports long-term brand recognition.

What is intellectual property litigation?

We have recapped intellectual property rights, but what happens when these rights are challenged? Intellectual property litigation is the legal process of resolving disputes when it comes to the infringement, validity, or ownership of intellectual property rights.

Whether you are dealing with patents, copyrights, trademarks, or design rights, the litigation process involves a series of legal steps taken to enforce these rights, defend them against infringement, or challenge their validity in a court of law. 

When an intellectual property dispute arises, parties may opt for litigation to uphold their rights, seeking remedies such as:

• Injunctive relief
• Monetary damages
• Accounts of profits

The complexity of IP litigation often requires a deep understanding of both law and technical, creative, or commercial context of the disputed asset. With this in mind, working with experienced intellectual property litigation lawyers can be key to securing the best outcome for your business.

Globally, IP litigation varies considerably, shaped by distinct legal systems. While the procedural frameworks share similarities, outcomes and strategy can differ significantly between markets such as the UK, US, and Australia, particularly where emerging issues like AI, digital assets, and cross-border enforcement are involved

How is intellectual property litigation handled in the UK?

In the UK, intellectual property litigation typically begins with identifying the scope of the intellectual property in question, which can encompass a range of rights, including patents, copyrights, trademarks, and design rights.

Once a potential infringement is identified, the process usually starts with a “letter before action” or cease-and-desist letter, which sets out the infringement claim and invites settlement before formal proceedings.

The aim is to resolve matters commercially first, UK courts actively encourage early settlement or mediation under the Civil Procedure Rules (CPR).

Most IP disputes are heard either in the High Court’s Chancery Division or in the Intellectual Property Enterprise Court (IPEC), a specialist forum designed for smaller companies or lower-value claims (typically up to £500,000 in damages).

IPEC offers capped costs and simplified procedures, a strong advantage for scaling businesses seeking proportionate enforcement.

Key UK developments in recent years include:

• AI and copyright: Getty Images (US), Inc & Ors v Stability AI Ltd [2025] EWHC 2863 (Ch) clarified that training AI models on copyrighted works outside the UK did not itself constitute direct infringement.
  
  
• Design rights: Marks & Spencer plc v Aldi Stores Ltd [2023] EWHC 178 (IPEC) upheld strong protection for distinctive product designs.
  
  
• Music and streaming: Warner Music UK Ltd & Anor v TuneIn Inc [2021] EWCA Civ 441 narrowed “safe harbour” arguments for online radio-aggregator services.
  
  
• AI inventorship: Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49 confirmed only natural persons can be inventors under the Patents Act 1977.

Business takeaway‍

Effective IP enforcement relies on strategy, proportionality, and preparation, not aggression.

• Send clear, evidence-backed letters before action.
  
  
• Choose the right forum (IPEC vs High Court) based on budget and complexity.
  
  
• Keep contemporaneous proof of creation, authorship, and commercial use these are decisive in UK proceedings.

What is the American approach to intellectual property litigation?

In the United States, intellectual property litigation is largely federal, complex, and resource-intensive. Patent, trademark, and copyright cases are typically heard in the federal district courts, with appeals on patent matters going to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

A key feature of the American system is the jury. Unlike the UK or Australia, where judges decide most issues, US juries decide infringement, damages, and underlying factual issues on validity, while validity itself remains a question of law reviewed by the court, often producing unpredictable but sometimes very high-value outcomes.

Recent cases founders should know:

• Hermès International v Rothschild (MetaBirkin) No. 22-cv-384 (S.D.N.Y. 2023), appeal pending:  NFTs can infringe trademarks when they cause consumer confusion.
  
  
• Andersen v Stability AI (N.D. Cal., ongoing 2025): class action testing whether large-scale AI training constitutes copyright infringement or fair use.
  
  
• Apple Inc v Masimo Corp (US ITC, 2024): resulted in exclusion and cease-and-desist orders over Apple Watch patent disputes.

Business  takeaway: 

• The US has one of the world’s most expensive litigation environments; a single patent case can exceed $1million in early costs.
  
  
• Register your IP before entering the US market, registered rights give access to statutory damages and legal fees in copyright and trademark cases.
  
  
• Expect broad discovery obligations: keep clean documentation and IP ownership records.
  
  
• Many technology and AI companies now consider the ITC route for rapid injunctions against infringing imports.

How is intellectual property litigation managed in Australia?

In Australia, IP litigation combines strong enforcement rights with a pragmatic, cost-effective court system.Disputes are primarily heard in the Federal Court of Australia, which has specialist IP judges, or in the Federal Circuit and Family Court (FCFC) for lower-value or less complex cases.

The process usually begins with a “letter of demand”, a pre-action notice setting out the alleged infringement and proposed remedies. Before proceeding to trial, parties are generally expected to explore alternative dispute resolution (ADR) options such as mediation. Courts in Australia actively encourage early settlement and can impose cost penalties for parties who refuse reasonable attempts to resolve matters.

A recent example is Hytera Communications Corporation Ltd v Motorola Solutions Inc [2024] FCAFC 168, which clarified the overlap between copyright and patent rights in complex technology disputes, reaffirming that Australian courts are willing to protect software-driven IP and enforce ownership rigorously.

Business takeaway:

• Australia’s IP regime offers strategic advantages for international enforcement, often faster and less expensive than proceedings in the UK or US.
• Secure IP ownership early. Always ensure IP assignments and confidentiality clauses are in place for employees, contractors, and collaborators; courts closely scrutinise ownership before granting relief.
  
  
• Prepare for early mediation and disclosure. Be ready to exchange evidence at an early stage, a well-organised case file and contemporaneous documentation can make the difference between success and failure.
  
  
• Use Australia as a regional enforcement base. Its efficient court system and adherence to international IP conventions make it an effective forum for Asia-Pacific-focused businesses.

What are the key differences in intellectual property litigation in the US, UK, and Australia?

While intellectual property (IP) litigation serves the same fundamental purpose across these jurisdictions, to protect the rights of innovators and creators, the procedural, cultural, and strategic approaches differ markedly.

Legal framework and courts

US: IP disputes (especially patent and copyright) are almost exclusively heard in federal courts, with appeals going to the Court of Appeals for the Federal Circuit. The US allows jury trials, and damages can include punitive awards, making litigation potentially lucrative but expensive. The discovery process is extensive and can add millions to costs.

UK: IP litigation is typically heard in the High Court (Chancery Division) or the Intellectual Property Enterprise Court (IPEC), the latter offering capped costs and streamlined procedures for smaller disputes. The UK system relies on judicial expertise rather than juries, making outcomes more predictable and evidence-driven.

Australia: The Federal Court of Australia oversees most IP disputes, with the Federal Circuit and Family Court handling simpler or lower-value cases. The Australian process emphasises early mediation and proportionality, offering a balanced and often faster route to resolution.

Laws and conventions

The US emphasizes patent protections and extensive rights discovery during litigation, which can make the process lengthy and costly. The UK, influenced by both national and EU legislation, places significant weight on performers' rights, moral rights, and passing off claims, balancing statutory and common law principles. Meanwhile, Australia aligns closely with international conventions like the World Intellectual Property Organization (WIPO) standards and less on statutory damages, focusing more on equitable remedies. 

Cost implications

Litigation in the US can be particularly expensive, due to comprehensive discovery processes and the potential for litigation prolongation. The UK offers more budget-friendly alternatives through streamlined processes in the IPEC, whereas Australia also emphasizes cost efficiency, reflecting a moderate middle ground. 

Precedents and influences

In terms of precedents, US IP litigation often makes international waves due to significant rulings from court hotbeds like the Eastern District of Texas. UK decisions carry persuasive weight across the Commonwealth, including Australia, where courts frequently reference UK case law.

Understanding these distinctions is essential when building a global IP strategy. What protects your assets in one country may not in another, which is why businesses should coordinate filings, enforcement, and dispute strategy across jurisdictions to ensure consistency and leverage.

Common intellectual property litigation mistakes

When navigating intellectual property litigation, it’s not uncommon to encounter challenges that lead to costly mistakes. Let's explore some of the most common pitfalls, so you can steer clear.

Failing to properly secure IP rights 

Before even reaching the litigation stage, one of the fundamental missteps is neglecting to adequately secure intellectual property rights. This can stem from unclear contractual arrangements, incomplete registrations, or differing ownership assumptions across jurisdictions. By working with an intellectual property lawyer, you can be confident you've dotted the i's and crossed the t's. 

Inadequate preparation and documentation 

Once litigation becomes unavoidable, the documentation of infringement and the strength of your claims are essential. Missing or incomplete documentation will quickly weaken your case. 

Here, it’s important to gather comprehensive evidence, including specifics about the infringement, timeline, and impact on your business. 

Underestimating the scope and costs 

IP litigation can be time-consuming and expensive. Parties often underestimate both the financial and operational impact, especially in multi-jurisdictional disputes. A clear cost-benefit analysis at the outset helps align litigation strategy with business priorities and budget.

The cost overall of IP litigation further underlines the importance of proactive protection, to ensure your assets are encased in iron-clad legal protections.

Ignoring potential settlements 

Litigation isn’t the only path forward. Mediation or settlement can often be quicker and less expensive resolutions, and it should be a priority at the start of the litigation process to explore alternative dispute resolution methods. Settling can achieve a mutually agreeable outcome, without the cost and strain that comes with IP litigation. 

Entering into litigation with weak evidence 

Attempting to litigate with flimsy or insufficient evidence can (and will!) backfire, damaging your credibility and wasting resources in the process. Ensuring your case is well-backed by solid evidence not only strengthens your position but also puts you in a better place for negotiations or trial. 

Failing to think strategically

Effective IP enforcement is not only about winning a case, it’s about protecting market position, investor confidence, and brand value.

Assess whether litigation supports broader commercial goals or whether other remedies (licensing, settlement, rebranding) might better achieve the desired outcome.

Expert strategies for intellectual property litigation

Successfully navigating intellectual property litigation requires not just legal expertise but also a strategic mindset. Let's explore some best-practice approaches.

Conduct thorough pre-litigation analysis: 

Before rushing into litigation, consider a comprehensive analysis of the situation. Evaluate the strength of your IP rights and assess any potential infringement issues. This will help set a solid foundation for your case and help you make informed decisions as you proceed. 

Assemble a skilled legal team: 

Given the complexities of IP litigation, it's crucial to have an experienced team of lawyers who specialize in intellectual property. With the right team, you can navigate the technical nuances, anticipate challenges, and craft compelling arguments to support your claims. If you anticipate your litigation to cross borders, it can be particularly helpful to employ the support of a law firm with an international focus.

Monitor market and industry trends: 

Keeping an eye on competitors' activities can allow you to quickly spot potential infringements and respond swiftly, helping you to maintain the integrity of your IP rights. To automate this process, some firms will offer monitoring services, such as trademark monitoring, which proactively scours the market for misuses of your protected trademarks.

Be open to alternative dispute resolution (ADR): 

As we've mentioned, litigation isn't always the solution! Explore alternative dispute resolution options such as mediation or arbitration, which can be more cost-effective, and more conducive to the building of long-term relationships. 

Final word

Your intellectual property rights are key to assert, protect, and maintain.  And, if your IP is set to take the world by storm, it’s crucial you have the means to protect your assets on a global scale.

At Biztech Lawyers, our intellectual property expertise takes a global, integrated approach, with jurisdictional expertise in the UK, the US, and Australia.

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