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HCR Law Events

25 November 2022

Protecting your brand

There are several things you can do to protect your brand when it comes to trademarking.

Choice of name

Choosing a brand name is probably the most important part of creating your brand identity, but this can also be the most difficult stage.  An obvious choice is a name that describes what your business does, and there’s nothing wrong with that – unless you want to protect your brand name as a trade mark.

Why trademark 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 one of your next key considerations. This will protect you against intellectual property crime and infringement of your brand.

Potential partners, buyers – especially licensees – consultants and other interested parties will be looking for security that the name is properly registered to you and protected for all goods and services covered by your business. A well-protected and managed brand can increase the value of your company; IP rights such as trade marks are becoming an increasingly valuable asset.

Why can’t I trademark a descriptive brand name?

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’. This means the trade mark must differentiate your brand from other brands. For example, if my business sold cakes and I called myself “Cake Shop” you would struggle to identify my business from other cake shops unless my cakes were world famous.

Is there any way to overcome this?

As I alluded to earlier, if your brand name has acquired distinctiveness through use ( for example, 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 if you can prove this to the examiner, your application may be successful.

Adding something distinctive to your name could also help, for example if I called my cake shop “Emma Kirkpatrick’s Cake Shop”, then I am setting my cake shop apart from other cake shops.

Another option is to incorporate your brand name in a highly stylised logo (not just putting your brand name in a colourful, jazzy font with a few embellishments) and apply to trade mark it in this form, the examiner may consider this to be distinctive enough.

However, the trade mark protection this would afford is for the stylisation of the logo, there is limited trade mark protection for the name.

What should I do?

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!  Think of the world’s biggest brand names: Nike, Kodak, Apple, Amazon etc. None of these brand names are descriptive and they are instantly recognisable.

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About the Author
Emma Kirkpatrick, Chartered Trade Mark Attorney

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