11 Aug 2025
When you're building a business, your brand name is one of your most valuable assets. But too often, small businesses focus on product development, sales, and marketing — and leave their trade mark strategy for later. Unfortunately, that delay can lead to costly surprises.
Trade mark issues rarely show up on day one. They tend to surface when you’ve already invested in your branding, gained visibility, or started attracting competitors. Here are some of the most common trade mark mistakes small businesses make — and how to avoid them.
1. Thinking a Business or Domain Name Is Enough
Just because you’ve registered a business name or secured a domain doesn’t mean you legally own the brand. These tools are great for admin and online presence — but they don’t give you the exclusive rights that come with a registered trade mark. Only a registered trade mark gives you the legal protection to stop others from using similar names in your industry.
2. Choosing a Name That’s Too Generic
Names that describe your product or service — like "Sydney Plumbing Co." or "Natural Skincare Australia" — can be hard (or impossible) to protect. Strong trade marks are distinctive, creative, and don’t just tell people what you do — they help you stand out. If you’re unsure, it’s smart to get advice before committing to a name.
3. Skipping the Clearance Search
Before launching, it’s critical to check that your name (or something similar) isn’t already registered by someone else. A Google search won’t cut it. A proper clearance search involves checking trade mark databases to avoid legal conflicts or having to rebrand later — when you’ve already invested in signage, packaging, or marketing. Even if ASIC has granted you a company or business name including your trade mark, this is no guarantee that you can safely use them if there is a prior trade mark registration that covers or is closely related to your business activities. Even if you have been using your trade mark for a number of years after someone else has registered the same or a very similar mark, you could be at commercial and legal risk. Indeed, the Courts in recent years have made it plain that where you need to rely on a claim to honest concurrent use of your mark in the face of an earlier 3rd party trade mark registration, the assessment of your honesty in adopting the mark will depend not on Google searching or ASIC registration but your ability to prove that you searched the trade mark records of IP Australia before launching your trade mark to ensure that you were diligent in avoiding encroaching on the prior rights of any 3rd party.
4. Waiting Too Long to Register
Some businesses wait until they’re "more established" to register a trade mark. But in a world where most businesses are online and prepared to sell to or be seen by the world, it comes as a rude shock to discover that unlike Australia most of the world operates on the basis that legal ownership belongs to the first party to file an application. In Australia, it’s first-to-use or in the absence of use by anyone then first-to-file. However, even if you have been using your mark, if someone beats you to the application, you could lose the name you’ve already built your reputation on or find yourself put to great expense trying to establish prior use or honest concurrent use. As noted in 3 above, the Courts in recent years have made it plain that Google searching or ASIC registration are not enough to show that your adoption of your mark was honest in the face of 3rd party prior rights.
5. Assuming One Trade Mark Covers Everything
Trade mark rights only apply to the goods and services listed in your application. If your business spans multiple areas, you may need coverage across more than one category. Logos, slogans, and product names may also need their own registrations.
6. Forgetting About International Protection
If you're selling online, dealing with overseas suppliers, or planning to expand abroad, it’s worth considering international protection early. Countries like China operate on a first-to-file basis — someone could register your brand there before you do. Australia is part of the Madrid Protocol, which helps streamline international filings.
7. Not Monitoring for Infringement
Once you’ve registered your trade mark, it’s your responsibility to watch for copycats or similar marks. Trade mark watch services can help identify risks early, so you can take action before it damages your business.
How IP Solved Can Help
At IP Solved, we help businesses of all sizes protect their brands from the ground up. Whether you’re launching, growing, or expanding internationally, we can guide you through the trade mark process — from name checks and filing, to enforcement and long-term strategy.
If you’re building something worth protecting, let’s make sure your brand is protected too.
Get in touch with IP Solved for practical, tailored advice to secure your trade marks and strengthen your business for the future.
