Elise Explains IPcast

elisesteegstra

Elise Explains IP provides simple, expert guidance on trade marks, design registrations, copyright, brand strategy, and intellectual property law in Australia. Whether you're building a business or creating new content, Elise helps you understand your rights, avoid risks, and protect the value of your work.

Episodes

  1. 3 DAYS AGO

    Choosing a Strong Trademark: A Practical Guide - Ep 10

    Choosing a business name is exciting. Choosing a protectable business name? That’s strategic. In this episode of Elise Explains IP, we break down what actually makes a trade mark strong — and why most trade mark issues start at the naming stage, not at registration. If you're launching a new business, rebranding, or advising clients on brand strategy, this episode walks through the practical legal considerations that can save time, money, and stress down the track. What We Cover 1. Not All Trade Marks Are Equal Trade marks sit on a spectrum — from highly distinctive (and easy to protect) to generic (and impossible to register). The strength of your trade mark affects: How easy it is to register How broad your protection will be How enforceable it is The long-term value of your brand 2. The Trade Mark Strength Spectrum We walk through the hierarchy of trade marks, from strongest to weakest: Fanciful / Invented Marks Completely made-up words (e.g. Kodak, Xerox). ✔ Strongest protection ✔ Easier registration ✖ Require marketing investment to build meaning Arbitrary Marks Real words used in an unrelated context (e.g. Apple for computers). ✔ Highly distinctive ✔ Excellent legal position Suggestive Marks Hint at what you do without directly describing it (e.g. Netflix). ✔ Registrable ✖ Sometimes face closer examination Descriptive Marks Directly describe goods or services (e.g. “Fast Tax Returns”). ✖ Difficult to register ✖ Narrow protection Generic Terms The name of the product or service itself (e.g. “Coffee Shop”). ✖ No protection available Common Mistakes We See Choosing a name that “sounds safe” but is legally weak Falling in love with a brand before conducting searches Designing logos and buying domains before checking availability Assuming registration automatically guarantees broad protection Practical Checklist: Choosing a Strong Trade Mark When naming your business, aim to: Choose invented, arbitrary, or suggestive names Avoid directly describing your goods or services Be cautious with geographic terms Think about future expansion Conduct clearance searches early Get advice before committing to brand rollout Key Takeaway If your name immediately tells people exactly what you do, it may be great for marketing — but weak for trade mark protection. Distinctiveness drives registrability. The strongest trade marks often feel slightly abstract at first — but that’s precisely what gives them power. Who This Episode Is For Start-ups choosing a business name Established businesses considering a rebrand Accountants, lawyers, and advisors guiding clients Marketing professionals collaborating with legal teams

    6 min

  2. 28 JAN

    Cantarella Bros Round 2 - Ep 9

    In this episode of Elise Explains IP, we dig deeper into the long-running ORO trade mark saga — this time through the lens of the Federal Court case Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 3) [2023] FCA 1258. Rather than overturn the earlier High Court decision, this judgment demonstrates another way the enforceability of a foreign-word trade mark can be defeated. 🔎 Key Issues Explored 1. Background of the Dispute Cantarella Bros owns two registered trade marks for the Italian word ORO for coffee products. It sued Lavazza Australia, alleging that Lavazza’s use of ORO on packaging and advertising infringed those rights. 2. Was Lavazza Using ORO as a Trade Mark? Justice Yates confirmed that Lavazza was using ORO as a trade mark — despite arguments that it was only descriptive — because of how the word appeared and operated on the packaging. The Court reiterated that even descriptive elements can function as trade marks depending on use and presentation. 3. The High Court’s Earlier Ruling In 2014, the High Court confirmed ORO was inherently adapted to distinguish in Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (the 2014 High Court decision), meaning the mark was not merely descriptive. You can read the full High Court judgment here: Cantarella Bros Pty Ltd v Modena Trading Pty Ltd [2014] HCA 48 — https://www.hcourt.gov.au/showCase/2014/HCA/48. 4. Ownership and First Use Are Fatal The turning point in the Federal Court case was the cross-claim on ownership. Lavazza introduced evidence that an Italian company, Caffè Molinari SpA, had used ORO as a trade mark in Australia before Cantarella’s first use, undermining Cantarella’s claim to be the first user and owner of the mark. Justice Yates found that Molinari had not abandoned its earlier use, and therefore Cantarella was not the true owner of the ORO trade marks. 5. Invalidity and Cancellation Because Cantarella was not the first user, the Court held its registered ORO marks were invalid and should be cancelled. Although Lavazza arguably infringed the marks on the facts, that finding could not stand because the registrations themselves were defective. 6. Broader Legal Themes This case highlights two critical trade mark risks: Ownership matters as much as distinctiveness — valid registration doesn’t guarantee enforceability if first use is challenged. Unregistered use can be decisive — evidence of earlier use by others may invalidate a registered mark. 🧠 What This Means for Your Brand Trade mark enforcement isn’t just about distinctiveness — ownership and priority can make or break a case. Comprehensive due-diligence and historical use research are essential before you register and before you litigate. Keeping systematic records of use from first commercial use strengthens your rights and helps preserve enforceability years later. 🔗 Relevant Cases Cantarella Bros Pty Ltd v Modena Trading Pty Ltd [2014] HCA 48 High Court decision confirming the inherent distinctiveness of ORO and Cinque Stelle in Australia. https://www.hcourt.gov.au/showCase/2014/HCA/48 Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 3) [2023] FCA 1258 Federal Court decision finding Cantarella’s ORO registrations invalid due to prior use by Molinari.

    7 min

  3. 21 JAN

    Getty Images v Stability AI - Ep 8

    Show Notes: Getty Images v Stability AI – What This Landmark AI Case Means Episode Title: Getty Images v Stability AI – What This Landmark AI Case Means (and Why Australia Should Be Paying Attention) Judgment Link: Getty Images (US) Inc & Ors v Stability AI Ltd [2025] EWHC 2863 (Ch) (High Court of Justice, England and Wales, 4 November 2025) – https://www.judiciary.uk/wp-content/uploads/2025/11/Getty-Images-v-Stability-AI.pdf Case Background In January 2023, Getty Images sued Stability AI in the UK High Court over alleged copyright and trade mark infringement by Stability’s image-generation model, Stable Diffusion. Getty claimed the AI was trained on millions of Getty’s licensed images without permission and could produce outputs reproducing Getty’s watermarks or marks. Key Legal Claims Primary Copyright Infringement (Training & Development) Getty initially argued that training the model on Getty’s images without licence violated its rights. However, Getty withdrew this claim at trial when it could not show the training occurred in the UK. The UK Court therefore did not decide whether training on copyrighted works, per se, is infringing. Secondary Copyright Infringement Getty next asserted that the Stable Diffusion model itself was an “infringing copy” because it embodied copyrighted works and that offering the model in the UK constituted importation of infringing articles. The Court rejected this: model weights are not “copies” of works and the model does not store or reproduce Getty’s images in a way that makes it infringing. Trade Mark Infringement The Court found limited and historical trade mark infringement where some early model outputs included recognisable Getty or iStock watermarks. However, filtering and model improvements reduced such risks, and the finding was narrow in scope. Passing Off and Other Claims Passing off was not substantively addressed in light of the trade mark ruling. Other claims were withdrawn or unsuccessful. Why the Decision Matters Copyright Implications: The Court confirmed that model parameters are not a “copy” of training content under UK law, an important signal for developers. The judgment does not resolve the global question of whether training on copyrighted material without permission is infringement in a jurisdiction where the training occurs. Trade Mark Implications: Outputs that reproduce watermarks or marks under commercial conditions can trigger trade mark liability. Monitoring and filtering model outputs is therefore key. Relevance to Australia Although this is a UK judgment, many principles will be of interest in New South Wales, Victoria, and federal Australian practice: Territoriality: Australian copyright, like UK law, operates on territorial principles. Activities outside Australia may not attract infringement claims locally. Model Weights & Copies: Australian courts have not yet ruled on whether AI model weights constitute copying; the UK approach may be influential but not binding. Trade Marks & Outputs: Australian trade mark law will also apply to outputs that can cause confusion in the marketplace; watermark issues remain relevant. Contractual Protection: Clear licences and contractual controls over datasets remain crucial for rights-holders. Developer Practices: Documentation, filtering regimes, and auditable data provenance help manage risk. Practical Tips for Listeners For Rights-Holders: Track where models are trained and deployed. Watermark or brand-protect where possible. Use clear terms in licences and contracts. For AI Developers: Maintain robust filtering and monitoring for generated outputs. Document training sources and locations carefully. Understand jurisdictional exposure, especially where services are offered globally. Further Reading & Resources Full Judgment: Getty Images (US) Inc & Ors v Stability AI Ltd – November 4, 2025 (UK High Court) – https://www.judiciary.uk/wp-content/uploads/2025/11/Getty-Images-v-Stability-AI.pdf

    9 min

  4. 14 JAN

    Aldi, Dupes and IP Law: When “Inspired By” Goes Too Far - Ep 7

    Aldi, Dupes and IP Law: When “Inspired By” Goes Too Far Episode summary Aldi is no stranger to headlines for its lookalike products — often called “dupes”. But when does copying cross the legal line from legitimate competition into intellectual property infringement? In this episode of Elise Explains IP, Elise unpacks the legal risks behind dupe culture and explains how courts in Australia and the UK are responding. Using two recent and high-profile decisions — Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd in Australia and the Thatchers v Aldi case in the UK — Elise explores how copyright and trade mark law can be used to protect brand owners against copycat packaging. This episode is essential listening for brand owners, founders, marketers, and anyone developing or launching consumer products. What we cover What a “dupe” actually is — and why they are legally controversial Aldi’s long-running strategy of lookalike products Why Australian courts often reject trade mark confusion arguments How copyright in packaging design can succeed where trade marks fail The Federal Court’s findings in Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452 What “substantial part” means in copyright infringement Why Aldi was ordered to pay additional damages The UK decision in Thatchers Cider Company Ltd v Aldi Stores Ltd How “unfair advantage” works in trade mark law — even without confusion Practical IP lessons for businesses navigating competitive markets Key takeaways You do not need identical branding for infringement — overall impression matters Copyright can be a powerful and under-used weapon against copycat packaging Intent and internal design instructions can be critical evidence Trade mark law increasingly focuses on unfair advantage, not just consumer confusion A layered IP strategy is essential for brands vulnerable to imitation Cases discussed Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452 Thatchers Cider Company Ltd v Aldi Stores Ltd (UK Court of Appeal) Who should listen Brand owners and founders FMCG and retail businesses Marketing and product teams Designers and creative agencies In-house counsel and legal advisors Anyone curious about how far “inspiration” can legally go About the podcast Elise Explains IP breaks down intellectual property law into practical, real-world insights for business owners and professionals. No jargon. No fluff. Just clear explanations of how IP law works — and how to use it.

    9 min

  5. 7 JAN

    Foreign Words as Trade Marks in Australia - Ep 6

    In this episode of Elise Explains IP, Elise breaks down how foreign words are treated under Australian trade mark law, and whether they can be considered descriptive — potentially undermining distinctiveness. We walk through the legal framework, practical examples, and what brand owners need to know when choosing and protecting trade marks that use words from another language. Key Discussion Points Trade mark distinctiveness in Australia: All marks — including foreign words — must be capable of distinguishing your goods or services from others. Ordinary Australian consumer test: A foreign word may be treated as descriptive if Australian consumers — or a relevant segment of the public — understand its meaning and see it as referring to the goods or services. When foreign words may still qualify: Words that are obscure, not widely understood, or arbitrary in context can be registrable. Brand strategy implications: Descriptive marks are hard to enforce and protect — early clearance and strategy are critical. Featured Case Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48 This High Court of Australia case considered whether the Italian words “ORO” (meaning “gold”) and “CINQUE STELLE” (“five stars”) were inherently adapted to distinguish coffee products under the Trade Marks Act 1995 (Cth). Cantarella succeeded on appeal, with the High Court holding that the marks were sufficiently distinctive and not directly descriptive for the relevant Australian audience.  Full judgment: https://www.hcourt.gov.au/cases/case_s67-2014  Why It Matters If a foreign word is understood in Australia as simply describing a quality or characteristic of goods and services, it may be considered descriptive — which can lead to refusal of registration or vulnerability to cancellation. This episode helps you navigate these issues with examples, legal context, and strategic insights. Resources Mentioned Trade mark clearance & strategy guidance IP Audit Tool (link available via the show page)

    8 min

  6. 31/12/2025

    Distinctive matters - What makes a trade mark ”distinctive”? - Ep 5

    Episode Summary In this episode of Elise Explains IP, host Elise Steegstra breaks down a core concept in trade mark law: distinctiveness. Understanding whether a trade mark is distinctive — and at what level — can mean the difference between strong legal protection and a trade mark that’s vulnerable or unregistrable. Elise explains: What distinctiveness means in trade mark law The spectrum of distinctiveness, from weak (descriptive) to strong (invented) marks Why descriptive marks are problematic and how they differ from suggestive, arbitrary, or invented marks The limits of logo protection when the underlying name is weak Practical guidance on building distinctive brands that are legally protectable The episode also includes a real-world case study: The Agency Group Australia Ltd v H.A.S. Real Estate Pty Ltd [2023] FCAFC 203, which illustrates how the court assessed distinctiveness — and why reputation alone was not enough to secure exclusive rights. Case Reference Read the full case: The Agency Group Australia Ltd v H.A.S. Real Estate Pty Ltd [2023] FCAFC 203 https://jade.io/article/1058589 Key Takeaways A trade mark must be distinctive to perform its legal role as a badge of origin. Descriptive marks are the weakest and often cannot be registered unless substantial evidence shows they have acquired distinctiveness. Suggestive, arbitrary, and invented marks are stronger and generally more protectable. A logo does not automatically fix a weak name; word marks usually carry the most value. Assess distinctiveness in context: the specific goods/services and how ordinary consumers perceive the mark. The The Agency case demonstrates that even well-known brands can fail to secure exclusive rights where descriptive terms are central to the name. Resources & Tools Brand Clearance and IP Strategy Support If you’re planning a new brand, contemplating a rebrand, or unsure about your trade marks strength, we can help. Book a trade mark clearance or strategy call through our website. IP Audit Tool Kick off the new year by evaluating your intellectual property landscape with our downloadable audit tool. Identify gaps, risks, and opportunities across trade marks, copyright, domains, and more. Visit: https://elisesteegstra.com Connect with Elise Website: https://elisesteegstra.com Instagram: @elisesteegstra LinkedIn: linkedin/elisesteegstra Email: elisesteegstra@gmail.com

    8 min

  7. 24/12/2025

    Who Owns the Yellow Jar? The Kraft v Bega Peanut Butter Battle - Ep 4

    In this episode of Elise Explains IP, Elise breaks down one of Australia’s most iconic branding disputes: the long-running legal battle between Kraft and Bega over the famous yellow peanut butter jar. We explore how something as simple as packaging colour can become the centre of a multi-million-dollar IP dispute — and what the case teaches every business about trade marks, goodwill, restructures, and product claims. Whether you’re building a brand, buying or selling a business, or thinking about internal IP structuring, this episode is packed with practical insights to help you avoid sticky legal situations. What We Cover ✨ The backstory How the Kraft peanut butter business was sold to Bega Why the yellow jar became the centre of the dispute How both companies tried to claim ownership of the same trade dress ⚖️ The Court’s key findings Goodwill is a real asset — and can be sold Each business line can have its own goodwill Unregistered trade marks (including packaging/get-up) are part of that goodwill You can’t transfer an unregistered trade mark without transferring the underlying business Why Bega won both at trial and on appeal 📦 The packaging claim twist Why Kraft’s label “Loved since 1935” was ruled misleading The change they were forced to make 💡 Practical takeaways for business owners Register your trade marks early — including trade dress Identify all IP assets in business sale agreements Avoid common mistakes when setting up IP holding companies Make sure all packaging claims are accurate and compliant with ACL Resources & Links ACCC guidance on misleading claims: https://www.accc.gov.au/consumers/advertising-and-promotions/false-or-misleading-claims  IP Australia Trade Mark Search: https://search.ipaustralia.gov.au/trademarks/search/quick  Previous episodes on trade mark basics and brand protection Connect with Elise LinkedIn: https://www.linkedin.com/in/elisesteegstra/  Website: www.elisesteegstra.com

    8 min

  8. 17/12/2025

    Beyond NDAs: Proactive Protection Strategies - Ep 3

    Beyond NDAs: Proactive Protection Strategies | Elise Explains IP In this episode of Elise Explains IP, Elise Steegstra breaks down what it really takes to protect your confidential information and IP assets — far beyond relying on a standard NDA. Many businesses assume an NDA alone will protect their secrets. In practice, courts expect more. Elise explores the legal, technical, and operational steps that actually make your confidentiality obligations enforceable and your commercial advantage defensible. Whether you're a founder, CTO, product lead, investor, or in-house counsel, this episode provides essential guidance on how to strengthen your IP protection strategy from multiple angles. What We Cover • Why NDAs often fail — and how to make them enforceable Learn the key elements courts look for, and how to draft clarity, reasonableness, and real remedies into your agreements. • Layered security protocols (digital + physical) Understand the technical and physical controls that demonstrate you take confidentiality seriously — from access controls to secure destruction to ex-staff offboarding. • Building a culture of confidentiality How onboarding, training, and everyday habits reduce the risk of internal leaks and strengthen your internal IP discipline. • Open-source software risks Why OSS can compromise commercialisation if unmanaged, and how to implement practical controls around licensing, provenance, and software supply chain risk. Who Should Listen This episode is ideal for: Start-up founders and early-stage teams CTOs, engineering managers, and developers Investors conducting due diligence In-house counsel and legal teams Anyone handling sensitive IP, trade secrets, or proprietary information Key Takeaways NDAs are the starting point, not the whole strategy. Courts expect you to take reasonable and demonstrable steps to protect your own information. Security must be layered across digital and physical environments. A culture of confidentiality is just as important as legal documents. Open-source software requires governance, not guesswork. Resources & Links If you need assistance reviewing your agreements, implementing an IP strategy, or auditing your confidentiality protocols, contact Elise:  www.elisesteegstra.com

    8 min

  9. 10/12/2025

    Trademark Basics for Brands: A Founder’s Crash Course - Ep 2

    Trade Mark Basics: What Every Business Needs to Know | Elise Explains IP If you’re building a brand in Australia, understanding trade marks is essential. In this episode of Elise Explains IP, Elise Steegstra (lawyer & trade marks attorney) breaks down the fundamentals: what a trade mark is, why you need one, and how the registration process actually works. Whether you’re a founder, creator, small business owner, or marketer, this is your practical crash course in protecting your brand and avoiding costly mistakes. ⭐ What You’ll Learn in This Episode: What you can and can’t register as a trade mark The difference between a business name, domain name & trade mark Why trade marks matter for brand protection and business value How registration works in Australia (step-by-step) Common mistakes (and how to avoid them) International protection: when to think beyond Australia When to register your trade mark How to enforce your rights once registered 🎁 FREE DOWNLOAD – IP Audit Tool Want to check if your business has hidden IP risks? Download my free IP Audit Tool here: 👉 https://www.elisesteegstra.com 🔗 More Resources Explore articles, guides, and templates for founders & creatives: 👉 https://www.elisesteegstra.com 💬 Say Hello If you enjoyed this video, don’t forget to like, subscribe, and comment with your questions. I’d love to feature your question in a future episode!

    8 min

  10. 03/12/2025

    IP Essential Explained - Ep 1

    Think you know intellectual property? In this episode, here’s what every Aussie creator, founder, and business owner actually needs to know about protecting their ideas.

    8 min
  • 10 Episodes

About

Elise Explains IP provides simple, expert guidance on trade marks, design registrations, copyright, brand strategy, and intellectual property law in Australia. Whether you're building a business or creating new content, Elise helps you understand your rights, avoid risks, and protect the value of your work.

Information

  • Creator
    elisesteegstra
  • Years Active
    2025 - 2026
  • Episodes
    10
  • Rating
    Clean
  • Copyright
    © Copyright 2025 All rights reserved.
  • Show Website
    Elise Explains IPcast