Choosing a suitable Trade Mark to register – Distinguishing the Mark

There are numerous advantages to registering a trade mark – it’s certainly a worthy exercise if you want to protect your branding. Not all marks can be registered though, and IP Australia, the government authority responsible for the registration of trade marks, must consider whether the mark can be registered or not.

One of the rules that IP Australia has to apply is whether the trade mark can be distinguished from others. This actually sounds harder than it actually is – put it this way. You can’t possibly try to trade mark the word “Apple” for the apples from your farm. A wine that comes from the Hunter Valley can’t possibly register a trade mark reading “Hunter Valley Wine”.

Quite simply put, a trade mark that is descriptive cannot pass this test.

The Trade Marks Act 1995 (Commonwealth) provides more guidance about what the test is. It says that trade marks that would fail consist of marks that are ordinarily used to show the kind, quality, quantity, intended purpose, value, geographical origin, characteristic, or the time or date of the production of the good or services.

Keep this rule in mind when choosing a suitable Trade Mark to register. Choose carefully, and stay tuned!