What is a brand?

A “brand” is not a company logo or an advertising campaign. A brand is like a reputation, and a business’ reputation lies outside of its control. A brand therefore, is really what the customers believe about the business or the products or services it provides usually as a result of a cleverly communicated strategy. Aspects of brand can include trade marks, company name, business name, domain names as well as the overall look and feel of the brand and packaging (referred to as “get up”).

Your marketing team will help you develop an overall brand strategy but you are wasting your time if you cannot legally protect your brand and prevent others from riding on the coat-tails of your hard earned reputation. We can work with you to ensure your brand is protectable.

How strong is your brand?

Developing a name that matches the desired image or brand of your business is essential. Customers, not companies, decide which businesses will succeed. The purpose of your brand is quite simple – to impress customers, which will result in increased and sustained sales and higher profits, over a longer period of time.

A key element that will determine the success of your brand is differentiation – standing out from the competition and finding a new market space. This process involves identification and design of your brand name, brand management and making the most of your brand through franchising.

At mdp McDonald Partners, we help you to determine whether the brand name you have selected or are considering is available, legally enforceable and whether it ‘stands out’ from your competitors. Once your brand is selected and established, we can help you protect and enforce your rights in the brand.

We can help you to build long-term, lasting value into your business and your brand. Our services include searches into the appropriateness of your brand, applications for trade mark registration, preparation of sale and licence agreements and tax and asset protection.

Aspects of “Brand”

A brand is not simply a name; a brand is made up of a number of factors including trade marks, business names, company names, domain names and “get up”.

Trade Marks

Trade marks are a key aspect of brand, whether they are registered trade marks or unregistered trade marks established through years of use and reputation. In order for trade marks to have the best protection options, and therefore contribute to a stronger brand, the trade mark should be registered with IP Australia.

Our trade marks lawyers can assist with registrability advice, trade mark applications and trade mark enforcement.

For more information on trade marks, see the trade marks page.

Company Names and Business Names versus Trade Marks

Whilst company names and business names are an aspect of brand, a party that registers a company name or a business name does not own that name. Neither the Australian Securities and Investments Commission (ASIC) nor Consumer Affairs Victoria examine an application for a company name or a business name to see if any other entity has a prior reputation in the name, nor do they ensure that there are no trade marks registered that might conflict with the company name or business name being sought.

It is, therefore, entirely possible (and in fact happens quite often) that one entity will own a trade mark in a particular name and another entity will have a company name registration for the same name. The entity which owns the trade mark has a legally enforceable right to use the name and, more importantly, generally has a legally enforceable right to stop the entity which has the company registration from trading under that name.

If a person wishes to acquire ownership rights in the name, they must do so by either registering a trade mark for that name or, in some circumstances, by acquiring a common law ownership of that name by virtue of its use, over a number of years. Only then will they have the legal right to use the name and the right to prevent others from using that name or one which is substantially identical or deceptively similar.

Domain names

A domain name is an internet address. A person who has registered a domain name is known as a “registrant”. Obtaining a domain name registration does not mean that the registrant “owns” than name because there are no proprietary (ownership) rights in a domain name. When a registrant registers a domain name, they acquire a licence to use that domain name for a certain period of time.

Domain name licences are allocated on a “first come, first served basis”, regardless of whether the applicant has any other legal rights to use that name such as a registered trade mark. The first applicant to apply for a particular name will be permitted to licence it provided that the eligibility criteria has been satisfied.

All the domain name licence does is allow the registrant to use the name, so long as doing so does not infringe any other relevant laws or other party’s rights. Relevantly, this means that it is possible for a registrant to be infringing another person’s trade mark by using a website, even if though the registrant holds the licence to use the domain name.

Get up

“Get up” is the overall look of a brand and often includes packaging and colour schemes. Some aspects of get up will be registrable as trade marks, whereas others can only be protected using other intellectual property rights (such as copyright) or Trade Practices laws.

How can mdp McDonald Partners help?

We can provide advice on the suitability and registrability of a proposed brand and can assist in the registration and protection of that brand. We can also provide corporate structure advice, to ensure that the potentially valuable brand asset is held in the most appropriate entity from a risk protection, taxation and investment perspective.

Once a brand is established, we can also help you explore commercialisation options such as licensing, franchising, sale of the brand or sale of the business.

We can also assist with brand-related disputes either via intellectual property and trade practices litigation or by non-litigious dispute resolution techniques.

Where to now?

Speak to an expert

Often the best way to get the answers you need is to speak to an expert. Click here to contact one of our experts via our contact forms or please call us on +61 3 9620 9660.


Attend a seminar

If you would like to book an information seminar please click here.


Organise an initial consultation

A face-to-face consultation gives you the opportunity to discuss your issue with professionals who deal with and resolve these issues on a daily basis.

It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.

For more information please call us on +61 3 9620 9660 or send us an e-mail at info@mdplaw.com.au. We are here to help.