Is your brand unique enough for protection?

Making the choice to safeguard your brand early in your small business journey can help save you from the stress and cost of having to rebrand if you infringe on someone else’s trade mark.

While registering a trade mark with IP Australia is not mandatory, it is recommended, because it gives you exclusive rights to use that trade mark as your brand within Australia.

This includes the legal right to use the ® symbol next to your trade mark, and the ability to legally prevent others from using your brand to trade similar goods and services.

A registered trade mark is also considered an asset that can enhance the value of your business.

It can be licensed or sold for a fee; for example, if you franchise or sell the business. Your trade mark is protected for an initial period of 10 years, and this brand protection can be renewed indefinitely.

Is your small business brand name “distinctive” enough to be trade marked?

Trade marks are unique identifiers that set your products and services apart from those of other businesses.

They can be brand names, colours, logos or a sign that distinguishes your business. When you apply to register a trade mark, it’s crucial to understand whether it is “distinctive”.

Trade mark legislation establishes that you can’t trade mark something that other businesses are likely to want to use.

The more distinctive your trade mark, the stronger it is, which helps protect it from future challenges.

You might know of businesses that seem to have registered a descriptive trade mark, like “Sydney Film School”.

While descriptive trade marks are possible, they can involve a lengthy application process that requires evidence of your brand gaining distinctiveness through use in the marketplace.

Some examples of distinctive (not descriptive) brand names include:

• Qantas: The name of Australia’s largest airline is an acronym for its original name, “Queensland and Northern Territory Aerial Services”. It’s distinctive because it’s an unusual word.
• Vegemite: This Australian brand is a unique name for a unique product. The name doesn’t describe the product, making it distinctive and memorable.
• Bunnings: This Australian hardware chain has a distinctive name that doesn’t directly describe its products or services, making it stand out in the market.
• Atlassian: This Australian software company has a distinctive name that doesn’t directly relate to its products or services, making it unique and memorable.

A distinctive brand name is more likely to be accepted as a registered trade mark, helping to protect your brand and business.

How can I tell if my brand name is distinctive enough?

Firstly, you should consider these two issues for your brand name:

• What would the average Australian associate with these words, would they see it as uniquely my brand or representative of something else?
• Would others likely want to use those words in relation to selling similar goods/services?

Note that these questions are specific to the goods and services you’re trading in.

To illustrate, “Apple” can be a trade mark for a computer company but not for a fresh fruit company. This is because other computer companies aren’t likely to use the word “apple”, but fruit farmers and grocers might.

Secondly, you can use IP Australia’s TM Checker tool to do a free check of your brand name and/or logo. It will help with an initial check to see if your proposed trade mark is distinctive and has the potential to be registered in Australia. If it does, you can apply to register it from $330.

The short TM Checker video above explains more about this process of applying to register a trade mark. 

What should I avoid when creating a distinctive brand?

Registering a trade mark can be challenging if it:

• describes your goods and services 
• describes the type, quality, or purpose of your goods and services
• is only a common surname or place name
• is a single letter, number, or common acronym.

What other tests are there for trade mark registration?

The name, logo or phrase you want to trade mark must also meet these other tests to be accepted:

• Similarity: Is it similar to other registered trade marks or pending trade mark applications? Note you will also identify any initial similarity issues when using IP Australia’s TM Checker tool.
• Deception or confusion: Could it confuse or mislead customers?
• Offensiveness and regulated signs. Could it offend customers and/or does it use a regulated sign such as the coat of arms? This is particularly important if you plan on taking your brand global. Different countries have different cultural understandings of English words, or they may translate into an offensive word in another language.

Finally, if you’d like to read more, IP Australia has lots of information for small businesses about trade marks, brand protection, and other intellectual property rights.  

Information provided in this article is of a general nature and does not consider your personal situation. It does not constitute legal, financial, or other professional advice and should not be relied upon as a statement of law, policy or advice. You should consider whether this information is appropriate to your needs and, if necessary, seek independent advice. This information is only accurate at the time of publication. Although every effort has been made to verify the accuracy of the information contained on this webpage, MYOB disclaims, to the extent permitted by law, all liability for the information contained on this webpage or any loss or damage suffered by any person directly or indirectly through relying on this information.