In Short
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A distinctive trade mark is unique and not merely descriptive of your goods or services.
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Registering a trade mark provides exclusive rights and legal protection.
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Avoid using common words or phrases that competitors might also need.
Tips for Businesses
When selecting a trade mark, aim for originality. Invented words, catchy slogans, or unique combinations can be more distinctive. Before applying, conduct a thorough search to ensure your chosen mark is not already in use. Registering your trade mark secures your brand and enhances its value.
Trade marks are a vital form of intellectual property protection that play a crucial role in safeguarding your business’s brand identity. Effective branding is key to success, enabling customers to easily recognise and distinguish your goods and services from those of your competitors. When developing a trade mark, you may find that a similar mark already exists. In such cases, you might consider adding a hyphen to differentiate your mark. This article will explore whether a hyphen is enough to make your trade mark distinct.
What is a Trade Mark?
A trade mark is a form of intellectual property that distinguishes your goods and services from those of your competitors. It can be a word, logo, slogan, sound, or colour that identifies your brand or product.
Trade Mark Requirements
Before attempting to register a trade mark similar to an existing one, it’s crucial to understand the legal requirements for registration. Your trade mark must meet these criteria to be eligible for registration.
One key requirement is that your trade mark must not be merely descriptive of your goods or services. For instance, if you operate a cleaning company, registering “Fast Cleaners” as a trade mark would be challenging, as it directly describes the nature and quality of your services.
IP Australia’s evaluation process includes assessing whether your proposed trade mark is ‘substantially identical’ or ‘deceptively similar’ to any existing trade marks already on the trade mark register. If your mark is likely to confuse consumers due to its similarity to an existing trade mark for the same or related goods or services, IP Australia will likely reject your application.
You can refer to the table below for more detail on how to differentiate the two.
| Substantially identical | When determining whether two marks are ‘substantially identical’ to one another, you must compare the trade marks side by side. You should consider their similarities, differences and essential features to determine this. |
| Deceptively similar | If two marks are not determined to be substantially identical, they may be considered ‘deceptively similar’. This comparison is based on a general recollection or overall impression in the context of the everyday consumer. |
The examiner will consider the above factors (among others) when assessing whether your trade mark is distinguishable from other trademarks.
Your business’ brand represents your values, identity and reputation. Learn how to create a successful brand and protect it.
Is Adding a Hyphen Enough to Distinguish a Trade Mark?
When considering whether adding a hyphen to your trade mark is sufficient to distinguish it from an existing mark, you must evaluate it against the criteria for trade mark registration.
In most cases, simply adding a hyphen to a trade mark similar to another is unlikely to make the two marks sufficiently distinguishable. For example, “Tech Solutions” and “Tech-Solutions” would likely be considered too similar, as they sound the same and look nearly identical.
However, there may be some instances where adding a hyphen could be sufficient if combined with other changes. For example, the difference between “cow’ and “c-ow” arguably provides a different overall impression. Therefore, they may be sufficiently different from one another.
Key Takeaways
As part of their evaluation criteria, IP Australia will consider if your trade mark is ‘substantially identical’ or ‘deceptively similar’ to other marks that already exist in respect of the same or similar goods or services. It’s important to note that adding a hyphen will usually not be sufficient to differentiate your trade mark from a similar mark. However, using a hyphen in a way that changes the meaning or essence of the mark may be sufficient in some cases.
If you need assistance registering a trade mark, our experienced IP lawyers can help. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A trade mark is a form of IP that enables you to distinguish elements of your brand from your competitors. A trade mark provides you with the exclusive rights to the use of your trade mark. Although not essential, you may choose to register your trade mark with IP Australia to gain an added layer of protection and formal registration.
In most cases, adding a hyphen to a trade mark similar to another is unlikely to make the two marks sufficiently distinguishable. However, there may be some instances where adding a hyphen could be sufficient if combined with other changes.
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