Elise Steegstra
How to Choose a Strong Trade Mark
Choosing a business name is one of the most important brand decisions you will make. But from a legal perspective, not all trade marks are created equal.
If you want your trade mark to be registrable, enforceable, and commercially valuable, it needs to be distinctive.
In this article, we explain how to choose a strong trade mark in Australia and avoid common naming mistakes that can undermine protection.
What Makes a Trade Mark Strong?
A strong trade mark is one that clearly distinguishes your goods or services from those of other traders.
Under Australian trade mark law, distinctiveness is critical. The more distinctive your mark, the:
The Trade Mark Strength Spectrum
1. Invented (Fanciful) Trade Marks
These are completely made-up words with no dictionary meaning (for example, Kodak or Xerox).
Why they’re strong:
They are inherently distinctive and typically straightforward to register.
2. Arbitrary Trade Marks
These use real words in an unrelated context (for example, Apple for computers).
Why they’re strong:
They do not describe the product or service, making them highly protectable.
3. Suggestive Trade Marks
These hint at the nature of the goods or services but do not directly describe them (for example, Netflix).
Why they can work:
They are often registrable, though sometimes subject to closer examination.
4. Descriptive Trade Marks
These directly describe the goods or services (for example, “Fast Tax Returns” or “Melbourne Plumbing Services”).
Why they’re weak:
Descriptive trade marks are difficult — and often impossible — to register without evidence of acquired distinctiveness.
5. Generic Terms
These are the common name for the product or service (for example, “Coffee Shop”).
Why they cannot be protected:
Generic terms are not capable of functioning as trade marks.
Common Mistakes When Choosing a Trade Mark
When selecting a business name, we frequently see:
Practical Tips for Choosing a Strong Trade Mark
If you are naming a new business or product, consider the following:
Key Takeaways
Choosing a strong trade mark is not just a branding exercise — it is a strategic legal decision.
A distinctive trade mark is easier to register, easier to enforce, and more valuable as your business grows.
If you are unsure whether your proposed name is registrable, seeking advice early can prevent costly rebranding later.
If you want your trade mark to be registrable, enforceable, and commercially valuable, it needs to be distinctive.
In this article, we explain how to choose a strong trade mark in Australia and avoid common naming mistakes that can undermine protection.
What Makes a Trade Mark Strong?
A strong trade mark is one that clearly distinguishes your goods or services from those of other traders.
Under Australian trade mark law, distinctiveness is critical. The more distinctive your mark, the:
- Easier it is to register
- Broader your protection will be
- Stronger your position in an opposition or infringement dispute
- More valuable your brand becomes over time
The Trade Mark Strength Spectrum
1. Invented (Fanciful) Trade Marks
These are completely made-up words with no dictionary meaning (for example, Kodak or Xerox).
Why they’re strong:
They are inherently distinctive and typically straightforward to register.
2. Arbitrary Trade Marks
These use real words in an unrelated context (for example, Apple for computers).
Why they’re strong:
They do not describe the product or service, making them highly protectable.
3. Suggestive Trade Marks
These hint at the nature of the goods or services but do not directly describe them (for example, Netflix).
Why they can work:
They are often registrable, though sometimes subject to closer examination.
4. Descriptive Trade Marks
These directly describe the goods or services (for example, “Fast Tax Returns” or “Melbourne Plumbing Services”).
Why they’re weak:
Descriptive trade marks are difficult — and often impossible — to register without evidence of acquired distinctiveness.
5. Generic Terms
These are the common name for the product or service (for example, “Coffee Shop”).
Why they cannot be protected:
Generic terms are not capable of functioning as trade marks.
Common Mistakes When Choosing a Trade Mark
When selecting a business name, we frequently see:
- Overly descriptive names chosen for marketing clarity
- Failure to conduct trade mark searches before investing in branding
- Reliance on geographic terms
- Assuming company registration or a domain name equals trade mark protection
Practical Tips for Choosing a Strong Trade Mark
If you are naming a new business or product, consider the following:
- Prioritise invented, arbitrary, or suggestive names
- Avoid directly describing what you sell
- Think beyond your current location or service scope
- Conduct clearance searches early
- Obtain trade mark advice before committing to branding
Key Takeaways
Choosing a strong trade mark is not just a branding exercise — it is a strategic legal decision.
A distinctive trade mark is easier to register, easier to enforce, and more valuable as your business grows.
If you are unsure whether your proposed name is registrable, seeking advice early can prevent costly rebranding later.