At Madderns, we work closely with businesses of all shapes and sizes, from individuals with big ideas to emerging startups scaling fast and established national and international corporations.
One of the most consistent trends we’ve observed is that many new businesses underestimate the importance of early trade mark protection and brand strategy. Understandably, energy and resources often go into product development, growth and marketing. But overlooking intellectual property – especially trade marks – can lead to expensive consequences down the track.
Trade mark issues usually don’t arise on day one. They tend to surface later, when you’ve already invested in your brand, built goodwill, or attracted the attention of competitors. Below are some of the most common pitfalls we see, and practical ways to avoid them.
Assuming a business name or domain name gives you trade mark rights
This is one of the most common misconceptions. Registering a business name or securing a domain name doesn’t give you the legal right to use that name exclusively, nor does it prevent others from using something similar.
A business name simply allows you to trade under a name for administrative purposes. Likewise, a domain name lets you operate a website at a particular address. Neither grants you enforceable intellectual property rights. If someone else holds a registered trade mark for a similar name in your field, they may have the legal grounds to stop you.
Only a registered trade mark provides exclusive rights to use a name or logo in relation to particular goods or services, and the ability to enforce those rights if someone else tries to use something too similar.
Choosing a brand name that’s too descriptive, generic or common
While it might seem helpful to choose a name that instantly tells people what your business does, overly descriptive or generic names are often unregistrable.
For example, names like ‘Melbourne Juice Co’ or ‘Pet Food Warehouse’ describe the goods or services too literally. Trade marks are meant to distinguish your brand from others. Descriptive names can be difficult to register and easy for competitors to imitate.
Stronger trade marks are those that are inventive, distinctive or suggestive rather than descriptive. Think Uber®, Google® or Spotify® – names that are memorable, protectable and unique to the businesses behind them.
If you’re unsure whether a brand name is distinctive enough, it’s worth speaking with a trade marks attorney before you commit to it.
Launching your business without conducting a clearance search
It’s essential to search for potential trade mark conflicts before locking in a name or identity. Unfortunately, many founders skip this step, relying on a Google® search or checking that a domain is available.
A proper clearance search involves checking the Australian Trade Marks Register – and if you’re thinking globally, international databases too – to ensure your chosen name isn’t already registered by someone else in a similar industry.
Overlooking this can result in legal disputes or a forced rebrand just as your business starts gaining momentum. A clearance search is one of the simplest and most valuable steps to take early in your branding journey.
Waiting too long to register your trade mark
Some businesses wait until they’re ‘more established’ to register a trade mark. But in Australia, it’s generally the first person to file who gets priority, not the first to use a name.
That means someone else could file for a trade mark that conflicts with yours, even if you’ve been using it for months or longer. This can lead to opposition, or in some cases, the loss of your rights entirely.
Registering early helps lock in your rights, avoid complications, and show the market and potential investors) that you’re serious about protecting your brand.
Believing one trade mark covers everything
Trade mark protection applies only to the goods and services listed in your application. These are grouped into categories known as classes. If your business operates in multiple areas – for example, retail, consulting and product sales – you may need to register in more than one class to secure full protection.
It’s also important to consider whether your logo, tagline, product names or packaging function as trade marks. If they do, they may deserve protection in their own right.
Working with a trade marks attorney can help ensure your application covers what it needs to now, and is scalable as your business grows.
Overlooking international protection
Many businesses don’t think about international trade mark protection until they’re already selling overseas or dealing with infringement abroad.
If you’re operating online, working with suppliers in other countries, or planning to expand into overseas markets, it’s worth thinking about international protection early. Some countries, particularly in Asia, operate on a first-to-file basis. That means someone else could register your brand in bad faith before you get there.
Australia is part of the Madrid Protocol, which makes it easier to file trade marks in multiple countries through a single application. We assist clients with this regularly and can help you develop a protection strategy that fits your budget and future plans.
Failing to monitor your rights
Once your trade mark is registered, it’s up to you to keep an eye out for copycats or similar marks being used or registered. IP Australia won’t do this for you.
We can help clients set up cost-effective watch services, identify concerning filings or marketplace misuse, and respond appropriately — whether that’s sending a letter, filing an opposition or resolving it commercially.
How Madderns can help
We’re more than filing agents. At Madderns, we partner with businesses at all stages of growth – from first-time founders and family businesses to global brands. We help clients define and protect what makes their brand distinctive, through thoughtful, commercially driven advice.
Whether you’re:
- launching a new product or business
- expanding your service offering
- preparing for funding or acquisition
- facing competition or potential infringement
we’re here to support your brand and trade marks strategy at every step.
There’s no one-size-fits-all approach to brand protection – and that’s where we come in. We tailor our advice to your business goals, your risk appetite and your long-term plans.
If you’re building something worth protecting, let’s make sure you do it right from the start.
We’re always happy to chat, feel free to get in touch. We’d love to hear from you.
