The following Decision by the Delegate serves as a reminder that in general, film titles will not function as trade marks.
Commercial success for inventions and innovations does not solely rely on a good product. Along with the manufacture of high-quality goods, how the market perceives a product also dictates how well that product sells commercially. Good public sentiment towards the product, also known as goodwill, strongly influences how likely people would purchase a certain product from a certain company. This is where branding comes in. The brand is the face the company presents to the public and connects the product back to the company. Historically, branding referred to actual practice of searing a visible identifying mark onto livestock in order for strays to be traced back to their owners. The modern brand somewhat serves the same purpose.
Possibly the most basic feature of a brand is the brand name, which is the unstylised text by which the brand is known. A good brand name can successfully cement a mental connection between the brand and the product. The mere mention of Cadbury’s, Kleenex and iPhone instantaneously conjures mental images of these well-known global brands and indicates the quality of the products they offer.
Creativity and out-of-the box thinking are needed to be able to choose a unique brand name that sticks. Sometimes, the most iconic brand names came to existence by accident (see Google). At the same time, one cannot discount the importance of data and market research in choosing a brand name. To select an effective brand name, these questions can serve as a guide.
Therefore, in consideration of these questions, here are several guidelines in formulating your own brand.
Finally, upon having settled on a brand name, the brand name should be registered as a trade mark under the corresponding classes in order for the brand to be protected for all the goods and services that are to be sold under that brand. A registered trade mark grants the owner protection and the right to enforce their mark against infringers and counterfeiters, as well as the right to license their brand to other parties.
A trade mark is a badge of origin that differentiates the products and services of your business from those of your competitors. Often a business name is selected with the intention to use the business name as a brand i.e. the business name is selected to be a badge of origin of goods or services sold by the business. However, merely registering a business name does not provide any enforceable rights. A competitor can copy your business name and sell similar goods and services under that name, taking away from the hard-earned reputation you have built in your business name.
Registering your carefully selected business name as a trade mark provides exclusive rights to use that trade mark within Australia in relation to the goods and services for which the mark is registered.
Similarly, the careful selection of a product or service name typically reflects a marketing strategy and trade mark protection will help ensure your marketing efforts are not diluted by a competitor selling a product or service under a similar name.
A trade mark can include a word or phrase, a logo, or less commonly:
Sometimes, a trade mark can be a combination of these elements.
Here are some guiding questions to consider when deciding to register a trade mark in Australia for trade mark protection:
Baxter IP’s experienced trade mark attorneys are can help you consider and answer these questions. Please reach out if you have any questions.