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IP Australia Knocks Canva to the Canvas

How many patents could a patent combatant patent if a patent combatant could patent patents?  It turns out possibly none, if they’re IT-based patents …

It’s not often that a legal decision about slide deck formatting gets a 230-page appendix and a judicial tone verging on exasperation. But that’s exactly what happened in April when IP Australia handed down the Delegate’s ruling on two Canva patent applications. And for tech lawyers, it’s a masterclass in where the edges of software patentability still lie in Australia.

What Canva Sought to Patent

Canva — Australia’s SaaS design darling — had sought patent protection for two computer-implemented inventions. One described how to take content from a document and reflow it into a deck format automatically. The other focused on the math behind mapping design “fills” into limited layout “frames.”

The applications were meticulous. Detailed. Full of flowcharts, hierarchy data, bounding boxes, fills, and pagination logic. They read like a design engineer’s epic poem – a love letter to structured templates.

But in the eyes of IP Australia, they weren’t inventions. Not in the legal sense, anyway.

The Legal Lesson: “Manner of Manufacture” Still Matters

Australia’s test for whether a computer-implemented invention is patentable remains the “manner of manufacture” test — essentially asking whether the claimed invention involves more than just abstract ideas, business rules, or well-known computer functions.

And here, the Delegate of the Commissioner of Patents said: nope.

Despite Canva’s argument that their invention transformed how users generate designs and templates, IP Australia saw it differently: the claims described a process for applying “rules” to content in order to lay it out aesthetically — something a human designer could do, and something that didn’t, in substance, solve a technical problem or enhance the functioning of a computer. It was more scheme than science.

More Than Just a Canva Problem

Why should the rest of us care?

Because this is yet another signal — after decisions like Research Affiliates and Rokt — that Australia continues to draw a relatively narrow line on software patents. If you’re advising a client on patent strategy in the digital design, AI, or UX tooling space, the key takeaway is this: just because something’s hard to code doesn’t mean it’s patentable.

The software has to do more than automate — it must yield a technical effect or improvement that isn’t just the automation itself.

So, What’s Next?

For Canva, it’s back to the drawing board — or perhaps, back to their formidable brand and copyright moat. And they still have six months to reframe the claims in a way that may survive scrutiny.

For the rest of us, it’s another sharp reminder that patenting in the tech sector remains as much an art as a science. Don’t just ask “Is it clever?” Ask, “Is it a manner of manufacture?”

Because in Australian patent law, not all clicks are created equal.

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Bed Bath ‘N’ Table Not Throwing In the Towel

What happens when your new brand smells a little too much like the towels next door?

If you’re Global Retail Brands Australia (GRBA) — the team behind House and its spinoff House Bed & Bath — you might find yourself embroiled in a multi-front legal fight with long-standing soft homewares heavyweight Bed Bath ‘N’ Table (BBNT). And if you’re BBNT, you might soon be on your way to the High Court of Australia to argue that while a trade mark might not be confusing, a brand strategy can still mislead.

GRBA, long known for “hard homewares” like kitchenware, took a foray into “soft homewares” by launching a new store format under the brand House Bed & Bath. The problem? BBNT had been using Bed Bath ‘N’ Table for over four decades and held multiple trade mark registrations.

BBNT sued under both the Trade Marks Act 1995 and the Australian Consumer Law (ACL), alleging trade mark infringement and misleading and deceptive conduct. While the primary judge in the Federal Court agreed GRBA’s branding was misleading under the ACL (and upheld passing off), they did not find trade mark infringement. The marks weren’t deceptively similar, said the Court — but the Court found  GRBA’s conduct was misleading/deceptive and also constituted passing off.

GRBA appealed, and in a twist befitting a soap opera about linen stores (Doylies of Our Lives? Folded and the Beautiful?), they won. The Full Federal Court overturned the misleading conduct and passing off findings — not because BBNT didn’t have a reputation, but because that reputation didn’t extend far enough to make “Bed & Bath” independently distinctive. The court also pointed to widespread descriptive use of “bed” and “bath” by other retailers and found that GRBA’s actions, while perhaps careless or even opportunistic, didn’t cross the legal line into deception.

BBNT sought special leave to appeal to the High Court. And now the top court in the land will get to decide how much weight to give to brand reputation, wilful blindness, and near-miss branding in Australia’s consumer protection and passing off law.

For trade mark lawyers and marketing advisors, this case is shaping up to be the test of the limits of brand mimicry in retail. Can a well-established business with a household brand name claim monopoly over combinations of common words like “bed” and “bath”? And what level of consumer confusion — or intent to confuse — is enough?

The main takeaways seem to be:

  • Trade mark law and consumer law don’t always walk in lockstep. You can lose one claim and win the other, based on different thresholds and factual assumptions.

  • “Wilful blindness” is not enough by itself. The Federal Court was clear that being strategic (or even a bit cheeky) isn’t the same as being legally deceptive — though the High Court may weigh in differently.

  • Descriptive branding is always a high-risk game. If your mark relies on common category words (like “bed” and “bath”), even 40 years of use might not give you exclusive rights.

  • Appealing to the High Court is rare and consequential. This will be a must-watch for IP lawyers — and one that could reshape how consumer law operates alongside trade mark protection.

Stay tuned for when the High Court beds down the final answer. For now, the towels are fluffed, the pillows are puffed, and the soft homewares sector is on notice.

For the Hitchhiker’s Guide fans, hey, who knows, maybe the HC will make their decision next year on Towel Day?

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Who Owns the Music? Taylor Swift and the Master Rights Nobody Talks About

She might be Swift, but she wasn’t quick enough to catch the Scooter back in the day.  But now all has changed …

It’s the music industry story that refuses to fade: Taylor Swift may finally have the chance to buy back her original masters — the recordings that launched her global superstardom. If the deal happens, it would close a saga that began in 2019, when her former label sold those recordings to private equity giant Shamrock Capital, following an earlier sale by Scooter Braun’s Ithaca Holdings.

For Swift fans, it’s a long-awaited victory. But for lawyers — and especially those in IP — the story is a masterclass in what most people don’t understand about music rights.

Let’s break it down.

It’s Her Song, But Not Her Recording

When people say “Taylor Swift owns her music,” they’re often talking about copyright in the song/composition itself — comprised of the lyrics, melodies and chord structure. And yes, she owns or co-owns the copyright in many of her compositions, particularly the later albums.

But that’s not the same as owning the recordings. The actual sound recordings of her early music — the studio masters — were owned by her former label, Big Machine Records. That’s standard in the music industry. Unless you’re a major independent artist or had rare contract leverage, your label usually controls the master rights from day one.

So even though the voice on those original albums is Taylor’s, and even though the songs are her words and melodies, the master recordings were never hers to begin with.

Why Master Ownership Matters

Owning the masters means controlling how the recordings are used, licensed, sold, or synced in media. If someone wants to use the originally recorded “Love Story” in a film, the master rights holder — not Taylor — says yes or no and collects the licensing fee.

It also means revenue. Master owners collect royalties from streaming, downloads, radio play, and physical sales. For a catalogue like Swift’s, we’re talking tens of millions of dollars per year.

In fairness, so does Taylor as the songwriter – but not as many as she’d collect if she owned the masters too.

When Swift lost control of her masters, she didn’t just lose licensing rights — she lost influence over how those recordings were represented commercially, something she’s made clear she cares deeply about.

The Re-Recording Strategy — and What This Offer Means

Swift’s response was bold: she began re-recording her albums (as “Taylor’s Versions”) to reclaim both control and commercial value. Because copyright law allows the same songwriter to create a new recording of their own work, she’s been able to rebuild her catalogue under her own terms.

But this new offer — to buy back the original recordings — is different. It’s about reconciling emotional legacy and legal control. For Swift, it could mean regaining ownership of the original audio associated with her rise to fame … and far more royalties.  For Shamrock Capital, it could mean cashing out at a high watermark while retaining goodwill.

The Legal Lesson

Here’s the IP truth every artist — and every lawyer advising creators — should remember:

  • Songs and recordings are separate IP assets with separate ownership structures.

  • A performer can own either, neither, or both.

  • Contract terms set at the start of a career can shape or strangle an artist’s control for decades.

For artists, the Swift story is a cautionary tale — but also a blueprint. For lawyers, it’s a reminder to explain the difference between composition rights, performance rights, and master rights clearly — preferably before the artist becomes a household name.

And for Swifties? It’s one more reason to stream the hell out of 1989 (Taylor’s Version).

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Sportsgirl Got Sabred

Not a food fight this time, but there’s real passion in fashion in the recent spat between Sportsgirl and high end Sydney brand Maison de Sabre.

Sportsgirl has recently removed from sale some miniature wallets shaped like fruit after Maison de Sabre accused them of copying their products.

Maison de Sabre says that in 2023 it launched its now very popular fruit-shaped charms, which are quite distinctive.  More recently, Sportsgirl started selling miniature wallets, some of which are seen below side by side with the relevant Maison de Sabre products (obviously the Sportsgirl products don’t have “Maison de Sabre” printed on them).

   

Images: Courier Mail

Well, imagine that – Sportsgirl releases some products strikingly similar to Maison de Sabre’s best-sellers. No logos are copied, and the products aren’t passed off by Sportsgirl as being those of Maison de Sabre (we can assume Sportsgirl hung a Sportsgirl label on them), and Maison de Sabre is renowned for these designs. Is Sportsgirl legally in the wrong?

What About Copyright?

In Australia, copyright protects original artistic works. However, once a design is industrially applied—meaning it’s mass-produced—copyright protection typically doesn’t apply. So, if Maison de Sabre’s design has been sold widely, it’s likely not protected by copyright anymore.

Passing Off / Misleading or Deceptive Conduct?

Passing off occurs when one brand misrepresents its products as those of another, causing consumer confusion. But if Sportsgirl clearly branded the products and didn’t suggest any association with Maison de Sabre, it’s challenging to claim passing off.

For the same reasons, it could be difficult to establish misleading or deceptive conduct, or false representations, in breach of the Australian Consumer Law.

Registered Designs: Your Fashion Shield

The most robust protection for product designs in Australia is through registering the design. This grants exclusive rights to the visual appearance of a product.

If Maison de Sabre had registered its designs, it could take action against Sportsgirl for infringement.

⚖️ The Verdict

Without a registered design, and if there’s no misleading branding or consumer confusion, Sportsgirl’s original actions in releasing those products for sale might have been legally permissible (even if not a great look / ethically questionable).

Again, Sportsgirl has withdrawn those products now, so perhaps crisis averted for either party.

It’s still a stark reminder for designers: protect your creations proactively.

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Caramel slice of heaven, or recipe for disaster?  There has been calamity in the kitchen (or at least, all over social media) as two cooks have a donnybrook over a cookbook – and it’s not a good look.

The rich buffet of available cooking puns aside, various plagiarism accusations have been flung by Nagi Maehashi (author of RecipeTin Eats) at Brooke Bellamy (author of Bake With Brooki), including about a caramel slice recipe Ms Bellamy has published in her Bake with Brooki book.

Ms Maehashi says she wrote that recipe and that Ms Bellamy has plagiarised it in her book – which of course Ms Bellamy denies.  To demonstrate her “evidence”, Ms Maehashi posted the below on her Instagram page:

Maehashi has compared her caramel slice recipe with Bellamy's as 'evidence' of copying. Picture: Instagram

Interesting (and tasty) … but … it’s caramel slice – even this author can make caramel slice.  So, what rights have been infringed?

Well, original works expressed in a material form may be protected by copyright – so if Maehashi’s recipe is original and she published it first then perhaps she has a point against Bellamy.

The bigger problem is whether the recipe Maehashi published is actually sufficiently “original”.  While those measurements might at first glance seem oddly specific (which might support an argument that it was original), they are individually very common measurement amounts.  Maehashi would need to be able to prove (if she was going to pursue the argument) not only that those measurements in that combination were her original works, but also that the rest of the recipe (such as the ingredients and the method) were also originally hers, and not just some slight tweaks on her part of other well-known recipes and methods.

Maybe this is why there is a cry of “plagiarism” instead of “breach of copyright” – plagiarism is not a legal claim as such, but is often more loosely referred to when there has been apparently copying of some parts of a work that might not actually amount to a breach of copyright (which seems to be the case here).

The biggest challenge for cooks in Maehashi’s position to make a legal claim for breach of copyright, even if those precise measurement combinations are hers, is that the rest of the recipe and that method are in fairness pretty well known – that’s simply how you make caramel slices.

Copyright does not protect “ideas” – not even really tasty ones.  Copyright only protects the original expression of those ideas.

If I like my Corn Flakes with precisely 425 mls of milk of a morning, that doesn’t mean I can publish that as my own original Corn Flakes recipe and have copyright protect me.

Perhaps the plagiarism claim has been overbaked?

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Robot Rumble: Motorola and Hytera Throw Down Over Code

It wasn’t exactly Rock ’Em Sock ’Em Robots, but the recent battle between Motorola Solutions and Hytera Communications was certainly a copyright and tech-world punch-up — with real ramifications for copyright law relating to software.

Motorola accused Hytera of pinching thousands of confidential documents and source code files — the digital DNA of Motorola’s radio communications tech — and using them to turbocharge Hytera’s own products.

The claim was that three Motorola engineers downloaded a treasure trove of materials from their work accounts before hopping over to Hytera in 2008. Motorola was not amused, and sued in both the US and Australia, claiming copyright infringement, trade secret theft, and that it’s just not cricket.

Here’s how it unfolded:

Year Event
2007–2008 Three Motorola engineers leave, allegedly taking source code and confidential documents.
2010s Hytera launches eerily similar digital mobile radios (DMRs) into the market.
2017 Motorola sues Hytera in the US (for trade secret theft and copyright infringement).
2020 A US jury awards Motorola nearly US$765 million.
2024 The US Seventh Circuit Court of Appeals cuts down the damages, ruling copyright law doesn’t stretch to overseas sales.
2022–2024 In Australian proceedings, Motorola wins a Federal Court case finding substantial copying of its software and some patent infringements.

In Australia (Hytera Communications Corporation Ltd v Motorola Solutions Inc [2024] FCAFC 168), the Federal Court was having none of Hytera’s various arguments. It found that Hytera’s software infringed Motorola’s copyrights in six major works and awarded Motorola remedies accordingly. One of Motorola’s patents was also found infringed — though another was knocked out for invalidity.

So, why does this matter for copyright and software?

First up: software source code is absolutely protected by copyright.  Nothing has changed there.

It doesn’t matter if the copying happened sneakily, through engineers quietly/brazenly exporting files out the back door. If your new product looks suspiciously like the old employer’s, and the code similarities are undeniable, you’re probably in trouble.

It’s a breach of copyright in a copyright work to copy all or a substantial part of the copyright work without permission.  What this case does is clarify what “substantial part” means when it comes to software.

Generally, in copyright, the test for whether the copied bit was a “substantial part” of the copyright work is a “qualitative test” – that is, it’s about quality, not quantity.

In a music context, cases such as the famous “Men At Work” case (EMI Songs v Larrikin Music) taught us that it’s how important the copied musical passage was to the whole work and not how lengthy it was (that quirky flute part in “Land Down Under” was held to be a reproduction of an important, but short, part of the melody in “Kookaburra Sits in the Old Gum Tree”).

The Court in that case said substantiality depends mainly on the importance or distinctiveness of the part copied in relation to the original work — even a small musical phrase, if distinctive, could be substantial.

In Hytera, though, the Court made an important distinction.  When it comes to software, it’s not about how functionally important the copied code is. You could copy a piece of code that barely moves the dial commercially — and still infringe. The real test is whether the copied part contains the original intellectual effort and creative expression of the coder.

It’s a subtle shift from cases like Men at Work, where the Court focused on whether the snippet (a melody, in that case) was distinctive or significant to the work overall.

In software land, copyright doesn’t care how useful the copied bit is — it only cares if it was original.

The Court in Hytera, though, was careful when discussing “intellectual effort” not to revert entirely back to the old “sweat of the brow” arguments.

In the old Desktop Marketing Systems v Telstra case (early Federal Court levels) it was held that just collecting and compiling basic data was enough for copyright to apply, because it involved effort to compile it all together – that is, it involved “sweat of the brow.”

But then IceTV v Nine (2009) came along, in which the High Court said No — effort alone is not enough.  It was held that copyright protects original expression — meaning something resulting from independent intellectual effort and some creative choice, not just labour.

In Hytera, the Court was very careful not to slip all the way back into pure “sweat of the brow” thinking – the Court didn’t say that simply writing code or working hard gave rise to copyright protection.  Instead, they said:

  • The copied source code was protected because it reflected original intellectual effort and creative choices — not just functional output.

  • You still need some degree of creative expression — but in software, that creativity can sit in how the code is written, how problems are solved, and the structure of the program — not necessarily in the “importance” of the function itself.

In other words:

  • Not just “I worked hard, therefore copyright.”

  • But “I made creative and original choices, therefore copyright — even if the code serves a functional purpose.”

Copyright Lessons from Hytera

  • Don’t steal code. Seriously. Just don’t – it leaves digital fingerprints everywhere.

  • Copyright protects software structure and content, not just fancy graphics or user interfaces.

  • Judges don’t love “but we changed it a bit” arguments when the starting point was a pile of stolen files.

High Court Appeal?

In early April, Hytera applied to the High Court for special leave to appeal, but in an extra blow to Hytera’s already deflated spirits, the High Court refused to grant leave as their appeal “does not enjoy sufficient prospects of success to warrant the grant of special leave”.  Ouch …