21 August 2018

Stay on Brand! Choosing the right name for your trade mark

You have yourself a waiting audience, a product to die for and a rock-solid business plan, but are still deciding on the most important part of creating your businesses identity – your brand’s name.

An obvious choice would be to try a name that describes what your business does – you’re a seller of Ice Cubes so have decided to call your company ICE COLD. There’s nothing wrong with that name,…unless you want to protect your brand name as a trade mark.

Why trade mark your brand name?

After investing considerable time and resources in developing your brand identity, protecting your brand name as a registered trade mark should be top of your shopping list when it comes to futureproofing your business. A good trade mark, will protect your brand against intellectual property crime and most importantly damage to your reputation.

Potential partners, consultants and other interested parties (especially potential buyers & licensees), will be looking for security that your brand’s name is properly registered to you and protected for all of the goods and services you provide.

A well protected and enforced trade mark adds real value to your business’ bottom line and could be the difference between a 6 figure, 7 figure or 8 figure offer for your business in the future.

So why can’t I trade mark a descriptive name like ICE COLD?

According to the Trade Marks Act 1994, a trade mark must be ‘capable of distinguishing goods or services of one undertaking from those of other undertakings’.

What does that mean!?

Well, it means the trade mark must differentiate your brand from other brands. For example, if my business sold tents and I called myself “Tent Land” you would struggle to identify my business from other tent sellers unless my tents were world famous.

Your trade mark has to have distinctive character to not only stand out in the market but even to get registered as a trade mark!

I’m stuck with ICE COLD, even got it on my stationary – is there any way to overcome this?

Not all is lost.

If your brand name has acquired distinctiveness through use (your brand has built up such a reputation in the marketplace that customers instantly associate the products/services you provide with your brand name) and you can prove this, your application for a trade mark may still be successful.

Another option is to incorporate your brand name in a logo. That does not mean putting your brand name in hot pink and putting it into a random word font – it has to Distinctive. By applying a highly stylised form to your mark you might be able to get ICE COLD registered yet!

What should I do if I haven’t decided on a name?

The more creative and memorable your brand name, the more likely customers are going to remember you and it is more likely a trade mark application will be successful. Make it stand out!

Apple, Google & Microsoft all have “brand value” estimated to be $100 Billion+ and have two major things in common – their brand name doesn’t describe what they do at all, and they have some of the strongest trade marks worldwide!

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About the Author
Mike Griffin, Paralegal
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