Working Together: Trade Mark Advice in the Age of AI
By Kate Kelly
More clients are coming to us with documents, summaries, or advice generated by AI tools, and we welcome this. AI tools can be a useful starting point and encourage curiosity, which is a good thing.
At the same time, we have noticed some patterns that, without professional guidance, can lead clients in the wrong direction or make the process more complicated and costly than it needs to be.
This article explains those patterns in a straightforward way, so we can work together as efficiently as possible and get you the best outcome.
What AI can do well
AI tools can be helpful for:
- Getting a basic overview of trade marks and intellectual property (IP)
- Brainstorming brand names or ideas
- Explaining general concepts in simple terms
These are useful applications. The challenge arises when AI output is treated as tailored legal advice, because that is where its limitations become significant.
Where AI falls short for trade mark matters
1. Privacy and confidentiality risks
Before using a publicly available AI tool for trade mark queries, it is worth understanding what happens to the information you enter. Unlike communications with a professional, information shared with an AI tool may be stored, used to train the AI, or disclosed in ways outside your control.
For trade mark matters, this often means sharing proposed brand names, product plans, or commercially sensitive business information before those ideas are protected. Early disclosure of this kind can affect your commercial position or your ability to establish rights for a brand.
We recommend using AI tools only for general, non-sensitive queries, and engaging a professional for anything involving your actual brand, product names, or business plans.
2. AI advice is often not specific to Australia
Trade mark law is highly jurisdiction-specific. Much of what AI produces draws on overseas systems, particularly the US and UK, or reflects outdated practice. What applies in those jurisdictions may not apply here, and in some cases it can point you in the wrong direction entirely. The AI advice may not align with the current Australian IP Australia practice in 2026
3. AI can sound confident even when it is incorrect
AI tools are designed to produce clear, fluent responses, which makes errors difficult to spot without specialist knowledge. They can misstate the law, present assumptions as certainty or ‘hallucinate’ and generate plausible-sounding information that is incorrect.
This is not a criticism of AI as a tool. It is a practical limitation worth knowing before you rely on it for decisions that affect your brand.
4. The difference between availability to use and availability to register
This is one of the most important distinctions in trade mark practice, and one that AI consistently handles poorly.
Whether a name is available to use and whether it is available for registration are two distinct legal questions, each requiring separate searching and legal analysis. Both involve careful comparison with existing trade marks in both the marketplace and on the register, assessing the likelihood of confusion, and applying professional judgement.
Tools such as IP Australia’s TM Checker can be a useful starting point, but they do not reliably predict whether an examiner will raise objections or how a conflict with an existing mark will be assessed. A proper clearance search and legal opinion require professional judgment.
5. AI-generated content can add time and cost to your matter
When you ask us to review AI-generated advice, we need to check each point for accuracy, identify what does and does not apply to your situation, and often reconstruct a clear picture from the ground up. In many cases, this takes more time than a fresh conversation would.
This is not a reason to avoid using AI. It is a reason to be transparent with us about what you have used and what you are trying to achieve. When we understand your actual question, we can provide a useful answer more efficiently and at a lower cost for you.
How can we work together more effectively?
Whatever your starting point, the following approaches tend to get the best results.
Start simple with your own words
Describe your situation in your own words, your business and what you want to achieve and ask any questions. This is more useful to us than a detailed AI-generated brief. We will guide the discussion and identify what matters.
Use AI as a starting point
If you have used AI, let us know what it told you and indicate what you would like clarified. It is also helpful to know your level of understanding so we can know what level to start the conversation at.
Ask for guidance, not validation
Rather than asking “Is this AI advice correct?”, ask “What should I do in my situation?”. Please feel free to indicate that you have tried to resolve it with AI. This allows us to focus on practical, accurate advice tailored to you and will more than likely be more cost-effective.
A note on working with AI going forward
AI is evolving quickly, and so is its intersection with trade mark practice. We are exploring these tools ourselves.
What AI cannot replace is professional judgement, current knowledge, and up-to-date jurisdiction-specific knowledge that come from working in Australian Trade Mark practise every day for many years.
The most efficient path to protecting your brand is usually a direct conversation, where we can understand your situation and give you clear advice based on current Australian IP Law and practice.
If you are ever unsure, just ask. We are here to help. We offer a 30-minute complimentary initial consultation. To book an initial consultation, click here.
The use of AI in business and in legal matters is changing rapidly. We will update this article as things continue to evole. Our general comments and observations are based on our experience as of May 2026.
