When applying to register a trade mark in Australia, one of the key requirements is that the mark must be capable of distinguishing your goods or services from those of other traders. This concept is known as distinctiveness.
Under the Trade Marks Act 1995 (Cth), a trade mark must function as a badge of origin. In other words, it should signal to consumers that a product or service comes from a particular business, rather than simply describing what the product or service is.
A trade mark that is not distinctive is often considered too descriptive or commonly used within the relevant industry. These types of marks are usually not registrable because other traders should be free to use ordinary language to describe their own goods or services.
Examples of lack of distinctiveness
Common issues arise where a trade mark:
- Directly describes the goods or services – for example, “Fresh Bread Bakery” for a bakery, “Quick Tax Refunds” for tax services, or “Sydney Car Wash” for a car wash business.
- Indicates quality, price, or purpose rather than origin, such as “Cheap Insurance” for insurance services or “Luxury Tours” for travel services.
- Uses terms that are widely used in the industry – for example, “Healthy Snacks” for food products or “Legal Services Australia” for legal services.
- Is purely promotional or laudatory, such as “Best Fish and Chips”, “Top Choice Plumbing”, or “Premium Construction Services”.
In these cases, the trade mark does not clearly identify a single commercial source. Instead, it is likely to be seen by consumers as descriptive language that other businesses should be free to use.
How can a trade mark become distinctive?
Even if a trade mark starts out as lacking inherent distinctiveness, it may still be accepted if it has acquired distinctiveness through use. This means that, over time, consumers have come to recognise the mark as identifying a particular business.
Evidence that may support this includes:
- Length and extent of use of the trade mark
- Advertising and marketing materials
- Sales figures and market share
- Examples of consumer recognition
Why distinctiveness matters
Distinctiveness is central to the trade mark system because it ensures that registered marks serve their core purpose: to distinguish one trader’s goods or services from another’s. Without distinctiveness, a trade mark cannot effectively function as a reliable badge of origin.
Understanding this concept early in the application process can help applicants choose stronger trade marks and reduce the risk of receiving objections or an Adverse Report from IP Australia.
