Increasing global competition, emerging technologies and contentious activity 5 min read
The latest annual Australian IP Report 2024 (the Report) reveals a significant increase in intellectual property (IP) investment in 2023. This growth was seen from both local and international entities seeking design and trade mark protection in Australia, marking an important change from previous years.
In this Insight, we summarise the Report findings and highlight key factors for businesses to consider in managing their IP risks and IP opportunities.
Key takeaways
- Expect increased competition: companies should be prepared for an increase in competition and contentious matters in the Australian IP market, and should increase their vigilance and filing sophistication to match.
- Stay abreast of practice developments: as Australia continues to revise and align its IP practice and law with international standards and emerging technologies, businesses should watch for changes that could influence their protection strategy or current portfolio.
- Consider global dynamics: entities should consider competing global dynamics between key countries as reflected in IP filing trends, when making strategic decisions about their own IP protection strategies.
General filing trends
Trade marks
Trade mark applications filed in Australia increased by 7.2% on their level in 2022, to 84,476
Filings by Australian applicants grew by 9.8% (to 49,036) and filings by overseas applicants grew by 3.7% (to 35,440)
Trade mark filings by Australian applicants comprise 58.0% of total annual filings
Designs
Applications for design rights grew to a record level of 8,776 in 2023, up 11.5% on their level in 2022
Design filings by Australian applicants increased by about a quarter, up 24.2% (to 2,652) from 2023
Filings by overseas applicants increased by 6.8%, to a record level of 6,189
Technology growth and digital trends
The surge in both trade mark and registered designs filings in Australia in 2023 was accompanied by a continued focus of filings in emerging digital growth areas. For instance, classes covering technological devices and services continued to dominate the total share of trade mark applications. Similarly, design filings in digital equipment also increased.
Total number of trade mark and design filings by year
Number and share of trade mark and design filings across digital growth areas
These emerging growth areas coincide with the ongoing acceleration of the digitally connected world, spanning all industries from manufacturing to retail. There is ample room for continued growth in these areas as trade mark practice and design law in Australia continue to develop. For instance:
- IP Australia has only recently adopted the Madrid Goods and Services List, the global standard for trade mark classification, which means statistics surrounding these growth areas may increase as the total share of filings transition into alignment with the Madrid Goods and Services List over the coming years.
- Recent public consultation by IP Australia included proposals to introduce virtual designs and partial designs into Australian designs law. This would greatly enhance the ability to protect graphic user interfaces (GUI's) and virtual and augmented reality innovations, compared to the current law which is unclear in that respect.
Entities should maintain a close watch on these updates to ensure they do not get outpaced by competitors leveraging these developments in Australian IP practice.
Foreign investment and competition
As geopolitical tensions increase the competition between key territories, countries are taking a more aggressive stance with protecting their IP investments as a means of maintaining a position of prominence.
In particular, the technology arms race between China and the United States is reflected in trade mark and designs filings into Australia, with an immense increase of 51.2% in trade mark filings and a sharp increase of 10.5% in design filings from China. This highlights China's ever-growing economic expansion.
While incoming US design filings dropped by 4.3% and incoming US trade mark filings dropped by 10.5%, the volume of US filings still dominate the total share of IP filings in the Australian market. In 2023, US trade mark filings remain larger than Chinese filings and US design filings remaining over double that of China.
Comparison of trade mark and design filings by the United States and China
Businesses should keep these changes in mind when tailoring their IP strategies in view of any US or Chinese based competitors, or emerging markets in those territories. Competitors from those territories should be monitored as their share of the IP market continues to grow, and with it, increased potential for contentious activity.
Increased contentious activity
The increased activity, crowding and competition in the trade mark and designs space in Australia inevitably results in increasing contentious matters between entities operating here.
There has been a 24.1% increase in the certification of designs from the previous year, certification being a prerequisite for anyone wishing to enforce their design rights. However, as there has been no corresponding increase in court design proceedings, this disparity suggests that many rights holders are effectively leveraging the threat of designs litigation to reach commercially favourable settlements.
In the same vein, whilst there was a 7.2% increase in trade mark filings, there was a drop of 9.9% in trade mark registrations. This disparity may suggest that competitors are successfully utilising the threat of opposition or court proceedings to reach settlements.
The potential uptick in contentious activity within the IP arena underscores the necessity for businesses to stay vigilant and proactive in monitoring their IP rights. It is important that IP risk assessments are carried out before any potential new potential product or service is released in the Australian market.
Moreover, to protect the investment in any new product or service, the initial IP strategy remains crucial in determining its subsequent strength. Businesses should ensure they engage specialised experts who can skilfully navigate the nuances of Australian practice and provide the best possible foundation for their IP portfolios.
Actions you can take now
- Collaborative market preparation: work closely with your IP expert to understand the competitive landscape of the Australian IP market and devise a plan to enhance your vigilance and sophistication in managing IP risks and securing IP opportunities.
- Joint monitoring efforts: review changes or developments in Australia's IP practice and law with your IP experts, especially those that align with international standards and emerging technologies. This will allow you to stay informed about changes that may affect your IP strategies.
- Global strategy discussions: engage in meaningful discussions regarding global dynamics between major countries and IP protection strategies abroad. Consider the differences between countries evolving IP strategies when developing your own, or when manufacturing and export locations are being evaluated.