Your trade mark is any sign or symbol identifying your business, product, service, or overall brand within the marketplace. Typically, a trade mark takes the form of a:
- brand name;
- phrase;
- logo; or
- slogan.
However, you can also register colours, smells, and movements as trade marks, although this is less common. Your trade marks distinguish the goods and services you offer from those of other traders within the same or similar fields. They act as a ‘badge of origin’ of your goods and services, allowing your business to develop a solid reputation under your trade mark that will hopefully carry customer loyalty and trust in your brand. This article will examine what exactly makes a trade mark distinctive.
Importance of Registering Your Trade Mark
When you use a trade mark, you can either register it or leave it unregistered. However, registering your trade mark generally offers stronger legal protection and gives you clearer rights. It is highly recommended that you register your trade mark to secure your business’ intellectual property (IP) assets. Trade mark registration is unique in that, unlike registering a business name or a domain name, just because the trade mark appears available will not necessarily mean that it will automatically achieve registration. Instead, IP Australia examines every trade mark application to ensure that they meet all criteria for registration. One key principle is that your trade mark must be distinctive.
What is a Distinctive Trade Mark?
Let us consider some of the world’s most recognisable trade marks – Google, McDonald’s, Nike, and Apple, among many others. These brands have always been distinctive, and one key similarity is that their names are unique phrases that do not simply describe the products or services they provide. Because of this, it is highly unlikely that any other trader within the same industry would need to use their trade mark. As such, these trade marks have built huge reputations associated with their products or services and have amassed global customer loyalty and recognition.
Continue reading this article below the formHow Do You Ensure That Your Trade Mark is Distinctive?
As explained above, one key aspect to consider is that your trade mark does not directly describe the goods or services you offer.
Therefore, when you are brainstorming brand ideas, it is important to try to develop a brand name and trade mark that is as unique as possible. This does not necessarily mean that you need to invent a new word (though this is a solid strategy), but simply that you should try to land on a name that does not describe your goods or services and is not in common use in your industry.
Tips for a Distinctive Trade Mark
Here are some short guidelines to help you develop a distinctive trade mark:
- do not be directly descriptive of the goods or services you will use the trade mark for;
- avoid terms like ‘best’ or ‘greatest’ in your trade marks. For example, ‘The Best Bakery’ claiming retail or baking services will encounter an issue with distinctiveness because other bakeries will likely want to describe their bakery similarly;
- consider twice whether your trade mark contains a geographical location to identify your goods and services; for example, ‘Sydney Dry Cleaners’. This will also likely encounter a distinctive objection. Additionally, if your industry requires using descriptive terms, you may be unable to trade mark them despite having operated under them as a brand name;
- similarly, try to avoid extremely common names for your trade mark. A distinctiveness objection is commonly raised concerning common last names such as Smith, Jones, etc; and
- often times, a trade mark application for a descriptive word mark (i.e. Delicious Drinks) may encounter descriptive issues. However, applying for the logo version of this same trade mark may not encounter these issues as long as the logo includes highly stylised visual elements that are distinctive.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Key Takeaways
Trade marks are important assets for your business, particularly for brand growth and recognition. To encourage trade mark protection in Australia, it is important that you register your trade mark. IP Australia will examine the application as part of the registration process. It must meet specific criteria, including that your trade mark should be distinctive and not descriptive.
When brainstorming trade marks, consider whether the phrase is descriptive of what you provide or whether there is even the slightest chance other traders in your industry might need to use the phrase. If so, steer clear and try to get creative. Alternatively, consider a highly stylised logo with distinctive visual elements incorporated into it (i.e. more than just a brand name in a pretty font).
If you have any questions about the distinctiveness of your trade mark, our experienced trade mark lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A trade mark is distinctive if it is unique and not directly descriptive of the goods or services. For example, ‘Google’ is distinctive, while ‘DELICIOUS DRINKS’ is too descriptive and not distinctive.
Registering a trade mark offers stronger legal protection and clearer rights. It helps secure your IP and ensures the trade mark meets distinctiveness criteria, distinguishing it from descriptive terms.
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