Making Your Brand Stand (Distinctive not descriptive!)

Making Your Brand Stand (Distinctive not descriptive!)

If you want your business to thrive in Australia, you might just need more than a logo or a nice sounding name—you need a trade mark that really stands out.

The best ones aren’t just “nice to have.” A distinctive trade mark gives you legal protection across Australia, stops copycats, and helps customers know your brand is the real deal.

Think of your trade mark as your brand’s badge. It shows people the quality they can expect from you—just like seeing Cadbury’s famous purple lets you know you’re getting smooth chocolate.

While anyone can register their business name or get a website, a registered trade mark is the only way to get full rights to your brand and fend off anyone who tries to get too close.

But there’s a catch: just because a name or logo looks available doesn’t mean you’ll get it. IP Australia will put your trade mark through a tough test—a legal check to make sure your brand isn’t generic, bland, or too similar to somebody else’s.

At the heart of their assessment is this: “Is your trade mark really distinctive? Does it help people link your name to your business alone, not the whole industry?”

If you want to be memorable, build loyalty, and protect your business for years to come, focus on making your trade mark unique. That’s how you turn a simple name into a powerful business asset.

What is a Distinctive Trade Mark?

A trade mark is distinctive when people see it and instantly know which business it belongs to. This isn’t just about picking a name that sounds cool or clever—it’s about making sure your brand stands out in a way that others in the same area wouldn’t naturally use.

A trade mark acts like a badge of origin—it shows customers where a product came from, and often what level of quality to expect. When you see certain brand names, colours, or logos, you know the business behind them and trust the product’s reputation.

Take Cadbury, for example. Their trademarked shade of purple isn’t just a colour—it’s a signal to buyers that they’re getting the real Cadbury chocolate. The same idea applies for distinctive names like Qantas, Nike, or Apple; these marks quickly tell people who made the product and stand for a certain quality.

This is why being distinctive is so important. Your trade mark’s main job isn’t just looking good—it’s helping people instantly connect your business, your quality, and your reputation to the goods or services they’re buying. If a mark becomes just a description or anyone in the market could easily use it, it loses its power to act as your unique signature. So, that badge of origin message is what protects your brand and lets you build trust and loyalty over time.

Check out these examples

Let’s look at some famous examples. “Google” isn’t a real word, so when people see it, they think of only one company. “Apple” is a regular word, but when used for computers, it’s unique and doesn’t describe what the product is. “Qantas” comes from a longer phrase, but because it’s put together in a new way, it’s also recognised as a distinctive brand.

On the other hand, names like “Best Cleaning Service” or “Fresh Bread Bakery” just describe what’s being sold. Lots of businesses might want to use those words, because they tell you what the product is rather than who made it. That’s why those marks aren’t considered distinctive, and can’t really be protected as your own.

So if you want your brand name to stay safe, make sure it’s something that helps people know it’s yours—because it’s original, unusual, or used in a surprising way.

A Journey through the Trade Mark Registration Process

When you want to register a trade mark in Australia, you start by sending in your application with your name, what you want to protect (like a business name, logo, or phrase), and the goods or services it covers. An examiner at IP Australia will look at your application to check if your trade mark stands out (is distinctive), doesn’t look too much like someone else’s trade mark, and doesn’t use any words that can’t be protected.

If there are problems—like your trade mark is too generic or similar to another—you’ll get a letter (called an adverse report) and a chance to fix or respond to the concerns. If things go well, your trade mark is listed publicly so others can object for a short time. If nobody objects, your trade mark is officially registered. That means you get exclusive rights to use it for up to 10 years and can keep renewing it.

The big question in this whole process: does your trade mark help people know that it’s your product or service—not just any product? That’s what being “distinctive” really means.

What Can Trip You Up with Trade Marks

1. Descriptive & Laudatory Words
“Fresh and Tasty Pies” for pies? Descriptive and likely to be blocked.

“World’s Best Shoes” or “Super Fast Freight” are classic marketing fluff—laudatory phrases lauding product quality/speed, but not brand origin.

The lesson: steer clear of selling words that others will want to use to praise or describe their own goods.

2. Surnames
Common surnames like “Smith”, “Brown”, “Thompson”, “Taylor” or “Green” trip up many applicants. Why? The law assumes multiple traders have a legitimate interest in using their own surnames.

Yet it’s not impossible! If you can prove significant use—think decades of trading, advertising, or nationwide recognition—your surname can become a registered trade mark. “SMITHS” for crisps (the famous Australian chips) was registered after long use. “LEES” for sauces (as in the Lee Kum Kee case, the Chinese sauce giant) succeeded due to the unique and famous association with its goods.

Other examples where surnames “made it”:

• Greens (for baking mixes)
• Williams (for shoes)
• Campbell’s (for soups)
• Smiths (for chips)
• Fowler’s (for preserving equipment)

If your name is unusual, you’re in luck—it’s more likely to be accepted from the outset.

3. Geographical Terms

The law is strict here—for good reason. You can’t lock up names people need to use to refer to places.

“Queensland Mangoes” for fruit: purely descriptive, unlikely to be accepted.

“Sydney Plumbing” for plumbing services? Problematic, as many traders offer these services in Sydney.

But what about quirky or unknown places? If the location is obscure or has no natural connection to the product (e.g., “Churchill” for car parts, where there’s no industry of that kind—see R & R C Bond (Wholesale) Ltd ATMO 36), then it might still be accepted.

4. Quirky Add-Ons: Prefixes, Titles, and “Mr.”

Sometimes, adding a quirk can tip a mark from bland to brand. Prefixes (“Mr Bun” for bakeries), invented blends (“Mondelez”), or unusual combinations (“Miss Maud”) can help—but beware, merely tacking on “Mr” or “Dr” or “The Real” won’t always get you home if the rest is still descriptive.

5. Real–World Oddities

“Just Jeans” was registrable for jeans because it was a clever twist, not just descriptive.

“Apple” for computers (not fruit!)—distinctive in context.

6. Acquired Distinctiveness
If your mark started off as unremarkable but, through heavy use, has become known to the public as your brand, you can provide evidence (ads, sales, testimonials) and sometimes still get it over the line.

Tips for Ensuring Your Trade Mark Is Distinctive

1. Invent new words:
If you create a brand name that doesn’t exist yet—like Kodak or Exxon—your chances of registering it as a trade mark are much higher. New words stand out and are less likely to be rejected, because nobody else uses them for similar products.

2. Use a surname—but only if you can prove it’s yours:
If your brand name uses your surname (like Smith or Green), you’ll need to show it’s been used for a long time and people associate it with your business. If your surname is common, it might be harder to claim just for yourself—unless you have a strong reputation.

3. Coin unique combinations:
Put different words together in a way nobody else has done. “Just Jeans” or “Hungry Jack’s” are good examples.

4. Avoid direct descriptions or praise:
Don’t use words like “Best Cakes” or “Super Fast Plumbing” for your trade mark. These describe your products or services

5. Experiment with sound, style, or made-up phrases:
Try changing the spelling, using interesting sounds, or creating an entirely new phrase that people will remember. Examples include “Google,” “Smiggle,” or even “Zumba.”

6. Steer clear of popular locations—unless your use is different or unusual. If your brand is named after a well-known place like “Melbourne Coffee,” it probably won’t be accepted, because many businesses in Melbourne might want it too.

Not sure if your proposed trade mark will cut it? Get advice from us.

Trade mark searches

• File trade marks – Australia
• File trade marks – Overseas
• Legal branding advice
• Trade mark oppositions
• Trade mark hearings
• Trade mark disputes
• Trade mark branding books
• Trade mark licences
• Team training sessions
• Trade mark renewals
• Removal/cancellation actions
• Trade mark renewals
• Removal/cancellation action
• Brand enforcement – litigation
• Domain name disputes

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.