COVID-19: Alert bar

How to choose a brand name that won’t land you in trouble

You’ve had the brilliant idea and you’ve got the name and logo to match. It’s catchy, it’s stylish and it’s got that je ne sais quoi. You just can’t wait to roll it out on signs, brochures, websites, business cards and every available space that will hold it. It’s perfect … but have you thought about your brand name’s legal considerations?

Before you sign off on your website development, shop fitting, advertising, marketing and celebratory shindig, hold the champagne just a moment longer and make sure nobody else has beaten you to the punch.

What’s in a name?

Your brand name is a first impression; an insight to the identity of your business. It’s not just how you will be seen and heard, but how you will be remembered, referred to, and recommended in the future. You need a name that sets you apart from others and will be memorable. Words that are easy to pronounce and spell are best.

The more distinctive the branding, the better. Not only will this guard against potential confusion with other brand names, but will also help to strengthen your exclusive claim to the rights to use your brand in connection with your products or services. Further, it may assist you to monitor your trade mark and enforce your rights, if required.

Get inventive

In coming up with a unique trade mark, it can be a good idea to throw the dictionary aside and think outside the box:

  • A fanciful, made up word with no meaning at all (Kodak; Adidas)
  • Words that ordinarily have no connection with your product/service (Apple; Red Bull)
  • A word that suggests a characteristic of your product but is not descriptive of the product (Greyhound Buses; Netflix)
  • An emotive word that falls short of describing the product (Fortuitous Cat for cat food).

These types of names are not only distinctive, but they can also give you great potential for creative marketing and imagery, and a clean slate on which to start building your business.

Steer clear

Some names cannot be registered or alternatively, even if they can be, they may be very difficult to enforce, such as:

  • Descriptive words and phrases on their own that describe a function or characteristic of the product or service (Quick/Fresh)
  • Generic names (Aspirin; Linoleum)
  • Geographical references, particularly where the area has a reputation for a particular thing (‘Yarra Valley’ as a brand for wine)
  • Offensive and scandalous language.

Protect yourself

Before you start spending money building your brand, it is vital to make sure it’s not going to infringe someone else’s intellectual property rights. Trade mark searches identify potential risks and liabilities arising from brand names that are already in use.

Trade mark searches should be done using the trade mark databases, company and business name registers, search engines and other databases. When searching, you should be looking for not only the exact name you hope to use, but also similar trade marks for closely related goods and services, which could result in your application being rejected. Under trademarks law, a brand name containing the word SUPER could be taken to be identical to a brand name that includes the word SUPA or SOOPER, as they are phonetically identical.

Trade mark searches will also give you an indication of how strong your brand name is compared with others, how likely you are to be granted the exclusive right to use your brand, and will expose potential areas of vulnerability against competitors.

At this point it may also be beneficial to obtain independent legal advice. Fellow business owners may be well meaning, but they are unlikely to have the specific knowledge required to protect your interests. A legal professional will be able to provide you with ongoing support in undertaking comprehensive searches, registering, monitoring and enforcing your trade mark as your brand grows, whether it remains local or expands into other countries.

Of course, you may not run into any of these problems, but why risk it? The costs of infringing someone else’s trade mark can run into many thousands of dollars, and you will be left spending even more time and money rebranding your business and building a new brand.

And now for the Champagne!

Choosing a brand name for your business is a task that should not be taken lightly. Your brand will most likely be the first point of connection between you and the consumer. Once you have started promoting that brand it can be a costly and difficult process to start over, if it turns out that you’re infringing someone else’s trade mark.

It is important to exercise caution, and to do your homework. Being careful when choosing a name is a great place to start, but it is essential; that you undertake comprehensive trade mark searches. You also should consider seeking legal advice to ensure that the registration and enforcement of your trade mark runs smoothly.

Your brand will be a vital asset to your business, and your trade mark is evidence of your hard work. Isn’t having a unique trade mark and protecting it worth the investment?

Discover more business tips and guides

Get business stories, ideas and offers in your inbox each month.