Distinctive vs Descriptive: Naming Your Brand the Smart Way

Distinctive vs Descriptive: Naming Your Brand the Smart Way

You’ve done it again.

You’ve fallen for a name.

Maybe it arrived on a sticky note in a café, or during a late‑night “what if we called it…” conversation. It feels clever, it fits your story, and you can already picture it on packaging and social media. Then the practical voice kicks in: “Can we register this as a trade mark in Australia?”.

This blog is for that exact moment. It explains what distinctiveness really means in Australian trade mark law, why IP Australia is wary of descriptive names, and how to pick (or tweak) a brand so it has a much better chance of registration – and long‑term protection.

What is trade mark distinctiveness in Australia?

In plain English, a trade mark is distinctive when it helps people tell your goods or services apart from everyone else’s. The more distinctive your mark, the easier it is to register and enforce.

Australian law talks about a mark being “inherently adapted to distinguish” – in other words, does the word, logo or phrase, by its nature, work as a badge of origin, or is it something other traders are likely to want to use because it describes what they sell?

IP Australia gives simple examples:

• Descriptive terms such as “STRAWBERRY” for drinks or “WARM” for heaters are weak because they describe a feature.
• Highly distinctive marks like invented words or ordinary words used in an unrelated way (for example, “APPLE” for computers) are usually much stronger.

Distinctive vs descriptive: the spectrum

Think of trade marks as sitting on a sliding scale:

• Generic – the actual product name, like “COFFEE” for coffee. These can’t function as trade marks.
• Purely descriptive – directly describe quality, purpose, place or kind, for example “SYDNEY BUS TOURS” for tour services. Hard to register, unless you have exceptional evidence of use.
• Suggestive / allusive – hint at qualities without spelling them out, like “JAGUAR” for cars. Often registrable.
• Arbitrary – common words used in an unrelated field, like “APPLE” for tech. Usually strong.
• Invented / coined – made‑up words like “SPOTIFY” or “MICROSOFT”. These are generally the strongest marks.

Most problems arise when a name sits too close to the descriptive end. IP Australia often raises “distinctiveness” objections where a mark directly describes what you sell, contains common marketing fluff (“DELUXE”, “PREMIUM”), or uses everyday industry terms.

Why IP Australia is so tough on descriptive marks

It’s not because examiners dislike your brand idea. It’s because the law says other traders must be free to use ordinary descriptive language.

If one business could monopolise “FRESH ORGANIC APPLES” or “FAST ONLINE TAX RETURNS”, competitors would struggle to explain their own services. A distinctiveness objection is really about keeping the playing field fair, while still rewarding truly distinctive branding.

Commentators sometimes sum it up this way:

“The more your mark describes what you do, the less it can distinguish who you are.”

Can a descriptive trade mark ever be registered in Australia?

Sometimes, yes – but only with strong, clear evidence that your name has acquired a second meaning in the market.

Australian law allows a non‑distinctive mark to be registered if you can prove it has, or will, become distinctive because of extensive use or intended use. This is called “acquired distinctiveness” or “secondary meaning”: over time, consumers stop seeing your words as a description and start seeing them as your brand.

As discussed in other cases, there have been examples where:

• A hospitality venue has turned a fairly ordinary word into a brand through heavy media coverage and consistent use.
• A coffee company has made a distinctive jar shape strongly associated with its product.

But these are exceptions, usually backed by:

• Long‑term, nation‑wide use.
• Significant marketing spend and media exposure.
• Clear evidence that the public and press use the term as a brand name, not as a generic description.

For most smaller businesses, it is far easier (and cheaper) to start with a distinctive mark than to try to “rescue” a descriptive one later with evidence.

How do you know if your mark is distinctive enough?

When clients ask “How do I know if my brand name is distinctive enough to register?”, an IP lawyer will usually run through a few practical tests based on IP Australia’s guidance and case law:

Does it directly describe your goods or services?

If a stranger could look at the name and immediately know what you sell, it might be too descriptive. “Brisbane Plumbing Services” is obvious; “Blue Iguana” for plumbing is not.

Would competitors reasonably want to use the same words?

If other traders in your industry would naturally reach for those words to describe their own offerings, IP Australia is likely to say the mark should stay free for all.

Is it an invented word or an ordinary word used in an unusual way?

Coined words and unexpected combinations score well. Common words used in a totally different field often do too (for example, a fruit word for software).

Does it just add “.com”, minor misspellings, or generic add‑ons?

Changing “cool cleaning” to “KOOL KLEANING” or tacking on “online”, “pro”, “solutions” rarely fixes a distinctiveness problem.

Have you checked for hidden meanings and existing use?

A quick search for your proposed mark plus your industry and key territories can reveal whether it’s already in common use, or has associations you didn’t expect.

Ideas for making your trade mark more distinctive

If your current name idea feels a bit too close to the descriptive edge, you don’t necessarily have to throw it away. Instead, you can:

FAQs – Distinctive trade marks in Australia

1. Why does my trade mark need to be distinctive?

Because the main job of a trade mark is to show where goods or services come from. If your mark just describes what you offer, it won’t reliably point consumers to you as the source.

2. Can I register a purely descriptive brand name?

In most cases, no. IP Australia will usually refuse marks that directly describe your goods or services, unless you can prove very strong acquired distinctiveness.

3. What are some signs my mark might be distinctive?

It doesn’t describe your product, it feels unusual for your industry, it’s an invented word, or an ordinary word used in an unexpected way.

4. Is it enough to just misspell a descriptive word?

Usually not. Minor spelling tweaks or adding punctuation seldom turn a descriptive term into a distinctive trade mark.

5. Should I file now or wait until I have more use?

If your mark is inherently distinctive, filing early is often wise. If it’s borderline descriptive and you have little use, it may be better to re‑name rather than rely on future evidence to “fix” it.

How Sharon Givoni Consulting can help

Sharon Givoni Consulting can:

• Review and rate your brand name ideas
• Explain how distinctive they are under Australian law
• Suggest safer, stronger options to protect as trade marks
• Help you sharpen or rename brands and logos
• File and manage trade mark applications in Australia and overseas
• Run searches, handle objections and plan brand strategy

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Sometimes we find it’s faster and cheaper to rewrite it from scratch. This review is billed like normal legal work — and often, that “free” AI document ends up costing more to fix than to do properly the first time.
Your instructions must come from you, not a chatbot.
We sometimes hear, “Just file what ChatGPT wrote.” But our job is to act in your best interests, not in the best interests of an algorithm. We need to understand what you want and what level of risk is acceptable to you.
You make the big decisions — we give legal guidance. The chatbot can’t represent you in court. We can.

When we have to say “no.”

Sometimes AI text makes threats, exaggerates rights, or includes false information. If it’s legally wrong or misleading, we can’t use it. That’s not us being difficult — that’s our duty as professionals. You don’t want a lawyer who follows a robot off a cliff.

The hidden risk of sharing information with AI

When you copy and paste your business details, contracts, or disputes into a public AI tool, you’re not talking to a private adviser. You’re giving information to a company that might store your words, use them for training, or be based overseas.

That could risk exposing:

• Trade secrets or design ideas
• Personal details or images
• Contract terms, prices, and business strategies

Our advice: use AI for general brainstorming, not for confidential details. Bring the real facts to us — they’ll stay private and protected by law.

Our AI and Client Instructions Policy (in plain terms)

AI is not your lawyer. Only our qualified lawyers give legal advice.

• If you bring AI‑generated documents, we’ll review or rewrite them — that work is billed like any other legal service.
• Your instructions must come from you, not a chatbot.
• We may refuse to use AI content that’s wrong, misleading, or unsafe.

Don’t put confidential details into public AI tools — and we won’t either.

If we use AI, it’s a minor background tool, not a replacement for legal thinking.

AI is powerful and exciting, but when it comes to your rights, brand, and business, you need more than clever. You need careful.

Case study: When AI “invented” Australian court cases

In 2025, an Australian lawyer appeared in the Federal Circuit and Family Court in a migration case — Valu v Minister for Immigration and Multicultural Affairs (No 2) FedCFamC2G 95.

The lawyer had asked an AI tool to find Australian cases to support their argument. The problem? Some of the cases — and even the quoted lines — didn’t exist.

When the judge couldn’t find those cases in legal databases, the lawyer admitted relying on AI without checking. The court had to remove the false material and issued a warning about the “growing problem” of fake AI case references.

This example shows why our policy matters. AI might produce confident answers, but in law, accuracy and integrity come first. Even one fake citation can damage a case — and your credibility.

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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.