A trademark is the name, image, logo, colour, scent, tagline, shape or aspect of packaging that identifies to your customers a connection to a specific product or type of service that your business offers.

A trademark is also used to distinguish the products or services you offer from those of what other traders offer. And I said traders, not traitors, which you might have called your competitor once or twice or always.

So when it comes to you wanting to protect your trademark, which is your brand, a badge of origin for the goods, products or services your business offers, one key and fundamental element is for the trademark to be distinctive.

Distinctive, but why?

If the trademark being applied for is not distinctive, this could lead to an objection being raised by IP Australia, the government department that grants registration.

How do I know it’s distinctive?

When you think about some of the best known brands in the world, for example: Google, Microsoft, IKEA, McDonalds, Wal-Mart, Ansell; they all share a common thread, which is their trademark, which is when their name or logo is not descriptive of the products or services that the brand is offering.

Light bulb moment!

How did they do it? Brand recognition occurs through customer education, but that is for another time and article.

Distinctiveness materialises when the trademark is not being descriptive of the products or services that they are claiming the trademark is being used for by their business. When a trademark is distinctive, it shows that – wait for it, legal phrase coming – the trademark is capable of distinguishing the goods and services from those of other traders…say what!

This means that the businesses who own the trademarks above, showed at the time of seeking registration, other traders would not likely have a need to use that trademark to describe the same or similar goods or closely related services.

This is the aim that all businesses want to achieve when creating a brand that can be registered as a trade mark.

How is my trademark not distinctive?

When you are brainstorming over a brew or two, here are some guidelines to achieve distinctiveness:

  1. Don’t be directly descriptive of the goods or services that you will be using the trademark for.
  2. Don’t use a laudatory term to describe the good or service being claimed. For example, ‘The Best Bakery’ claiming retail services or baking services, because other bakeries are likely to want to describe their bakery in the same way. But proof is in the custard tart.
  3. Think twice if your trademark contains a geographical location to identify your goods and services, for example, ‘Sydney Dry Cleaners’.
  4. When Tina Turner broke up with Ike, all she wanted was her name! It is important to ask yourself, is my name distinctive in its own right? Do I have initials that a lot of other traders would have and want to also use as their trademark?

Whether you are creating a brand or wanting to register your brand to protect it, distinctiveness is the key to achieving registration of the trade mark; which has the perks including the exclusive right to use, licence or sell that trademark relating to the goods or services it is used for, and most importantly, the right to stop others from using it in connection to the goods or services, that you have built its brand recognition around.

Conclusion

When you are creating your brand, ask yourself: Will my competitor likely need to use this trademark, legitimately and honestly, to describe the same or similar goods or services? If so, it may not be distinctive.

If you’re still unsure, then contact Legal Vision and we will be happy to assist.

Daniel Smith

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