What Features Make a Good Trade Mark?

It is best practice to protect your brand name in plain text and stylised (in the colour, font or shape you use). An example of this is the name ‘H&M’ and the stylised ‘H&M’, displayed in a cursive red font.

Protecting your business’ slogan or tagline adds a level of sophistication to your business and ensures your business has the exclusive use of your tagline. Famous slogans with trade mark registrations include ‘I’m Lovin’ It’ and ‘Just Do It’.

Using an icon logo or motif across your business is a great way to create a connection with your clients and visually show them what your brand is about. Motifs can be used across your business, on products or, very commonly, as an identifier on social media or digital stores.

It is best practice to protect your motif and brand name if they are being used together. Both elements are recognisable and crucial to the brand.

It is difficult to protect an idea when it is not written down or expressed. If you are considering protecting an idea, write it down.

Hashtags can incorporate a brand name, tagline, movement or marketing campaign. If your tagline includes your trade mark or an element of your business branding that is used as a sign, you may be able to protect it with a trade mark.

A domain name secures your URL so that no other business has the same address.  However, this does not provide enforcement protection. If you use your domain name as a sign for your business, you may also like to protect this with trade mark registration.

Some famous brands are made up of entirely newly invented words or phrases. A classic example is Kodak. As an invented word, Kodak has no dictionary meaning. Adopting a new, unique word can be a great strategy for distinguishing your trade mark in the market because it is unlikely that any other parties are using that word or phrase as a trade mark before you. As Kodak shows, an invented word can sound good, be memorable and form a good basis for a strong reputation.

Another approach is to choose words that are completely unrelated to your business. For example, consider Apple for computers or Mongoose for bicycles. Both words are memorable, instantly recognisable and, most importantly, protectable brands. However, registering a trade mark containing commonly used words will not prevent others from using those words to describe other goods or services.

As a general rule, if you have included a common name (first name or surname), that is shared by a significant portion of Australians, it is more likely that other traders may wish to use the same name in trade, and because of this, that name is less likely to be considered distinctive. However, if the goods or services you are looking to cover in your application are sufficiently specialised or uncommon (for example, helicopter design services), the threshold of ‘commonness’ may be higher. For example, you might be more likely to successfully register the last name Johnson in connection with specialised goods/services than you would for more common goods/services such as clothing or software services.

This category includes names that are suggestive of the goods or services being sold, while not being entirely descriptive. While these trade marks will not always be refused, you will need to consider whether other traders selling similar products are likely to want or need to use those words in that combination to sell their own products.

Descriptive words may be statements about the quality of the products (for example, “Fresh Donuts”), their location or geographic origin (for example, “Sydney Lawyers”), or just generic terms used for those products (for example, “Clock” for timekeeping devices). In cases where your trade mark does nothing more than describe your goods and/or services, it may prove difficult to register.

If your brand name is already in use by other traders, it is likely they will obstruct registration. You should avoid using a brand name of a well-known business, even if that business does not produce the same goods or services as you, as they may have spillover reputation rights.