When you “buy” software, do you actually own it?

In most cases, the answer is no.

In this episode of Elise Explains IP, we break down software licensing basics in plain English — what a licence really is, why it matters for your business, and the risks that often get overlooked.

Because software isn’t just a tool — it’s infrastructure. And if you don’t understand your rights, you may not be in control of your own systems.

Many businesses invest heavily in custom-built platforms — CRMs, booking systems, or internal tools — only to discover later that they don’t own the underlying IP.

If the relationship with the developer breaks down, the business can be left without control over systems they rely on every day.

If you review nothing else, focus on:

Software sits at the centre of most modern businesses — from customer data to financial systems.

If you don’t control your access to those systems, you may not fully control your business.

If you’d like help reviewing your software arrangements or ensuring your business is properly protected:

Book a strategy call: https://www.elisesteegstra.com

If you found this helpful, share it with a business owner or advisor — especially anyone investing in software or building custom systems.

Most business owners assume their website or app is “theirs.”

But in reality, ownership of what you’ve built is often fragmented — spread across developers, designers, copywriters, and third-party platforms.

In this episode, Elise breaks down how intellectual property actually works in websites and apps, where businesses commonly get caught out, and what to fix before it impacts growth, control, or a future sale.

This is a practical guide to understanding what you own, what you’re licensing, and how to properly secure your digital assets.

If you have (or are building) a website or app:

1. Put proper agreements in place

2. Confirm ownership sits with your business entity

3. Understand what you’re licensing

4. Keep records and access

5. Protect your brand

A business builds an app using external developers and creatives.

A few years later, they:

During due diligence, it becomes clear they don’t fully own:

The result? Delays, renegotiation — or a lost deal.

Your website or app is often a core business asset.

If you don’t control the IP:

If you’re unsure whether your website or app IP is properly structured, now is the time to review it.

Book a strategy call:

If this episode was helpful, share it with a business owner or founder building something online.

And don’t forget to follow Elise Explains IP for practical, real-world guidance on protecting your business.

Episode Title: Why Cadbury Doesn’t Own the Colour Purple (And Why Colour Trade Marks Are So Hard)

Can a business really “own” a colour?

In this episode of Elise Explains IP, we unpack Cadbury’s long-running attempts to protect its iconic purple packaging — and why those efforts have had mixed success in Australia and internationally.

Using real cases, including the dispute with Darrell Lea and Cadbury’s failed UK registration, this episode explains why colour trade marks are some of the hardest rights to secure.

Cadbury’s use of purple

The Australian dispute with Darrell Lea

The UK trade mark attempt

Why colour trade marks are difficult

Australia

United Kingdom / Europe

Many businesses assume that consistent use of colours, packaging, or design elements automatically creates legal ownership.

The Cadbury example shows that:

If you’d like help protecting your brand or understanding what elements of your business can actually be registered as trade marks, you can learn more here:

👉 www.elisesteegstra.com

Elise Explains IP is a podcast for business owners, founders, and advisors who want to understand how intellectual property actually works in practice — and how to protect what they’re building before problems arise.

Episode: Social Media IP Risks for Brands

Social media has become one of the most powerful tools for building a brand. But it also introduces a range of intellectual property risks that many businesses overlook.

In this episode of Elise Explains IP, Elise discusses the most common IP and brand protection risks businesses face on social media — particularly when marketing teams, agencies, influencers and customers are all using the brand in different ways.

From inconsistent use of trade marks to influencer behaviour that can damage brand reputation, this episode explores how quickly brand control can be lost online — and what businesses can do to manage those risks.

Whether you're a business owner, marketer, or advisor, understanding these issues can help ensure your brand remains legally strong and commercially valuable as it grows online.

Elise explains:

Why social media creates unique intellectual property risks for brands

How inconsistent use of brand names and logos can weaken trade mark protection

The risks associated with influencers using brand assets incorrectly

How influencer behaviour can impact brand reputation

Why user-generated content can create copyright issues

How hashtags and social media trends can unintentionally reshape a brand

Practical steps businesses can take to protect their IP online

When marketing teams, agencies, and influencers all use the brand differently — abbreviations, altered logos, or modified taglines — it can weaken trade mark protection and create confusion about the brand itself.

Influencers often create their own visual content, which can result in:

altered logos

modified brand colours

cropped or stylised trade marks

branding combined with other products

Without clear guidelines, this can dilute the brand or create legal issues.

Influencers effectively act as public ambassadors for the brand. Controversial or inappropriate behaviour can quickly create reputational damage for the business associated with them.

Once content is posted online, it can easily be:

shared

copied

modified

repurposed

Businesses may lose control over how their IP appears across social platforms.

Customer photos, videos and reviews are valuable marketing tools — but reposting them can raise copyright and permission issues if the business does not have clear rights to reuse that content.

Campaign hashtags can sometimes become more widely used than the trade mark itself, creating confusion about the brand and potentially weakening trade mark protection.

To reduce social media IP risks, businesses should consider:

Creating clear social media brand guidelines

Including IP and brand use terms in influencer agreements

Monitoring online use of brand names, logos and hashtags

Obtaining permission before reusing user-generated content

Maintaining consistent use of registered trade marks

Protecting a brand online requires ongoing management, not just registration of trade marks.

For more insights on protecting your intellectual property and building legally strong brands, visit:

https://www.elisesteegstra.com

Elise Explains IP breaks down intellectual property issues in a clear and practical way for business owners, founders, advisors and professionals.

Each episode focuses on real-world brand, trade mark and IP issues that affect growing businesses — and how to manage them strategically.

The Katy Perry Trade Mark Case: What the High Court Actually Decided

Episode: Taylor v Killer Queen LLC [2026] HCA 5

In this episode of Elise Explains IP, we unpack the High Court of Australia’s long-awaited decision in Taylor v Killer Queen LLC [2026] HCA 5 — widely known as the Katy Perry trade mark case.

The dispute involved an Australian fashion designer who registered the trade mark “Katie Perry” for clothing, and the global pop star Katy Perry, whose companies sold merchandise under the same name.

After years of litigation and conflicting outcomes in the Federal Court and the Full Federal Court, the High Court has now clarified how trade mark reputation and priority dates interact under Australian law.

The key takeaway: trade mark rights are assessed based on the position at the priority date — not with hindsight after someone becomes famous.

This decision reinforces the importance of early trade mark filings, evidence of reputation, and careful brand strategy.

In this episode we discuss:

The background to the Katy Perry trade mark dispute

Why the Australian designer registered “Katie Perry” as a clothing trade mark

How Katy Perry’s companies challenged the validity of that trade mark

Why the Full Federal Court cancelled the registration

How the High Court reversed that decision

Why the 2008 priority date became the central issue in the case

What businesses should learn about trade mark timing and reputation

The High Court emphasised that the validity of a trade mark must be assessed at the time the application is filed.

In this case, that meant asking whether Katy Perry had sufficient reputation in Australia in September 2008 to make the “Katie Perry” clothing mark deceptive or confusing.

The Court held that the respondents did not prove that level of reputation at that time.

Under the Trade Marks Act 1995 (Cth), a trade mark can be cancelled if its use would be likely to deceive or cause confusion because of an earlier reputation.

However, reputation must be proven with clear evidence at the relevant date.

Later fame cannot be used to retrospectively invalidate a trade mark.

The High Court found that the Full Federal Court had incorrectly concluded that the trade mark should be cancelled.

Instead, the evidence did not establish that the singer’s reputation in Australia at the relevant time was strong enough to invalidate the registration.

As a result, the High Court allowed Taylor’s appeal and restored the validity of the “Katie Perry” trade mark.

Although this case involved a global celebrity, the lessons apply to any business building a brand.

1. File trade marks early

The earlier you file, the earlier your priority date is locked in — and that can be critical in disputes.

2. Reputation must be proven

If you want to challenge a trade mark based on reputation, you need clear evidence of that reputation at the relevant time.

3. Courts won’t apply hindsight

Later success or fame doesn’t change the legal position that existed when a trade mark was filed.

4. Brand strategy is risk management

Choosing a name isn’t just a creative decision — it’s also a legal and strategic one.

Case: Taylor v Killer Queen LLC

Key legislation discussed:

Trade Marks Act 1995 (Cth)

Section 60 – Reputation as a ground for opposing registration

Section 88 – Rectification of the trade mark register

High Court decision:

High Court judgment summary:

Elise Explains IP breaks down intellectual property law into clear, practical insights for:

business owners

founders and entrepreneurs

financial advisors and professional advisers

brand owners and creators

The focus is on helping businesses understand risk, protect their brands, and build valuable intellectual property assets.

Follow Elise Explains IP on your favourite podcast platform and share the episode with someone building a brand or launching a business.

Many of the world’s most memorable brands are built around short phrases.

Think “Just Do It”, “Because You’re Worth It”, or “I’m Lovin’ It.”

But can businesses actually protect slogans and taglines as trade marks?

In this episode of Elise Explains IP, Elise unpacks how trade mark law treats slogans, why many applications fail, and what businesses should consider before investing heavily in a tagline.

While slogans can become powerful brand assets, they are not automatically registrable. The key issue is whether the phrase functions as a distinctive brand identifier, rather than just advertising language.

We explore:

Why slogans can become valuable intellectual property

The legal test for distinctiveness under trade mark law

Why many marketing phrases fail to qualify for protection

The difference between advertising copy and trade mark use

Examples of well-known slogans that function as trade marks

Practical considerations for businesses developing taglines

Not all slogans can be protected.

Distinctiveness is critical.

Descriptive phrases are difficult to register.

Consistent use can build protection over time.

Strategic branding helps.

Examples of slogans that function as trade marks include:

Nike – “Just Do It”

L’Oréal – “Because You’re Worth It”

McDonald’s – “I’m Lovin’ It”

Red Bull – “Red Bull Gives You Wings”

These phrases work because they are memorable, distinctive, and strongly associated with a single brand.

A slogan can become one of the most recognisable elements of a brand.

But if it isn’t capable of trade mark protection, competitors may be able to use similar phrases.

Understanding how trade mark law treats slogans helps businesses:

Invest in branding that can actually be protected

Avoid adopting phrases that are too descriptive

Build long-term brand value through distinctive messaging

IP Australia – Trade Marks Overview

Trade Marks Act 1995 (Cth)

My website

https://elisesteegstra.com 

Elise Explains IP breaks down intellectual property in practical, plain-English terms for business owners, professionals, and advisors.

Each episode explores how IP works in the real world — and how businesses can use it strategically to protect brand value.

In this episode of Elise Explains IP, we explore how packaging shapes and colours can function as trade marks under Australian law. We break down the legal test for non-traditional marks, why distinctiveness matters, how functionality can undermine protection, and what evidence you need if you’re building these kinds of brand assets. We also unpack a major recent dispute over the Moccona coffee jar and what it tells business owners about enforcing shape trade marks in practice.

A “sign” under Australian trade mark law can include words, shapes, colours and packaging, so long as it can function as a badge of origin — meaning consumers recognise it as identifying one trader’s goods or services over others.

A shape or container can be registered as a trade mark if it’s distinctive and non-functional.

Functional features (e.g. those that improve handling, storage or manufacture) generally cannot be monopolised under trade mark law.

Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd [2024] FCA 1277

Moccona’s glass instant coffee jar shape was registered as a trade mark (Class 30 for coffee and instant coffee).

The Federal Court dismissed Moccona’s claim that Cantarella’s (Vittoria) similar jar infringed the shape mark, finding that use of that jar shape in advertisements did not amount to use as a trade mark and that key factors pointed away from consumer confusion.

The court also rejected Cantarella’s cross-claim to cancel the mark, holding that Moccona’s extensive use of the shape before the priority date had given it acquired distinctiveness under the Trade Marks Act.

Why this matters for business owners:

Colour can be registered if it functions as a trade mark and distinguishes your goods/services.

A classic international example is Tiffany & Co’s Tiffany Blue (registered in the U.S. for jewellery and packaging), showing how colour can serve as a badge of origin when strongly associated with a brand.

The disputes over Cadbury’s attempt to register a specific shade of purple illustrate key principles for colour marks:

Colour must be precisely defined and shown to function as brand identifier, not mere decoration.

A mark — whether shape or colour — must be recognised by consumers as identifying the source of goods or services.

If a shape is dictated by technical or functional necessity, registration is unlikely. Trade marks protect brand signals, not engineering features.

Registration gains force only when the mark is actually used in the marketplace in ways that signal origin.

Here are links and references to the legal decisions and authoritative sources we discussed:

Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd [2024] FCA 1277 – Moccona coffee jar shape trade mark dispute (Federal Court of Australia) AustLii Case Decision

Australian Trade Marks Act 1995 (Cth) – Defines eligible trade marks, including non-traditional marks (shapes, colours, packaging). (See also IP Australia guidance on colour trade marks) Trade Marks Act

Shape and colour can be trade marks, but they must do real work in the marketplace as badges of origin.

Evidence matters: Consistent use over time builds distinctiveness.

Registration ≠ enforcement: Winning in court often hinges on how consumers actually perceive and use the brand elements in everyday purchasing decisions.

IP Australia manuals and guidelines on trade mark registrability

Case summaries from IP practice firms

Trade mark search and monitoring tools

What happens when a global brand expands into a new country… and discovers it doesn’t legally own its own name there?

In this episode, Elise breaks down the famous Australian branding anomaly behind Burger King and Hungry Jack's, and explains why this story is more than just business trivia — it’s a powerful lesson in trade mark strategy.

If you’re planning to grow your brand beyond your current market, this is essential listening.

Why trade marks are territorial and don’t automatically travel with your business

How filing timing can determine who legally owns a brand name

The real commercial costs of rebranding in a new market

Why trade mark planning should happen before expansion, not after

How this case still affects branding in Australia today

When Burger King attempted to enter Australia in the 1970s, it discovered the name was already registered locally.

Rather than abandon the expansion, franchise partner Jack Cowin launched the business under an alternative name: Hungry Jack’s.

Same burgers.

Decades later, Australians still don’t visit Burger King — they visit Hungry Jack’s.

This case illustrates three core trade mark realities:

1. Your brand only exists legally where it’s protected

2. Delay can cost you your name

3. Rebranding is expensive and disruptive

Before expanding internationally:

Identify target markets early

Conduct proper clearance searches

File trade marks proactively

Align filings with your expansion timeline

Trade marks aren’t just defensive tools — they’re infrastructure for growth.

About Elise Explains IP

A practical podcast helping business owners understand intellectual property in plain English — with real-world examples, legal insights, and strategies you can actually use.

Trade marks don’t travel.

In this episode of Elise Explains IP, Elise breaks down the practical realities of international trade mark protection — when you need it, how to approach it, and what can go wrong if you delay.

From manufacturing risks to eCommerce expansion, this episode explains why global business requires a global brand strategy.

Why trade marks are territorial

Manufacturing risks in first-to-file jurisdictions

Real-world disputes

These cases illustrate a key lesson: reputation does not equal ownership.

Expansion risks

Marketplace takedowns

Customs blocks

Licensing demands

Rebranding costs

The eCommerce trap

Two international filing pathways explained

• Convention applications — separate filings in each country within 6 months of your Australian filing, offering independence and flexibility.

• Madrid Protocol applications through the World Intellectual Property Organization — streamlined international filing with central management, but exposure to “central attack” risk during the first five years.

You should be considering overseas protection if:

You manufacture offshore

You plan to expand internationally within 12 months

You operate borderless eCommerce

Investors are reviewing your IP position

Your brand is central to business value

International trade marks aren’t about prestige — they’re about risk management.

Filing early in key jurisdictions can protect:

Your supply chain

Your market access

Your brand value

Your scalability

Because reclaiming a brand once someone else owns it overseas is far more expensive than protecting it early.

This podcast provides general information only and does not constitute legal advice.

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.

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

We walk through the hierarchy of trade marks, from strongest to weakest:

Fanciful / Invented Marks

Arbitrary Marks

Suggestive Marks

Descriptive Marks

Generic Terms

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

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

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.

Start-ups choosing a business name

Established businesses considering a rebrand

Accountants, lawyers, and advisors guiding clients

Marketing professionals collaborating with legal teams