What Can You Trademark? A Practical Guide For Australian Startups

If you’re building a startup or small business, your brand can become one of your most valuable assets. The name you choose, the logo you invest in, and even a distinctive tagline can become the “shortcut” customers use to recognise you and trust you.

That’s where trade marks come in. A trade mark can help you protect the identity you’re building, so other businesses can’t ride on your reputation (or confuse your customers) by using something too similar.

But one of the biggest questions we hear from founders (and one of the most searched questions online) is: what can you trademark?

In this guide, we’ll walk you through what you can trademark in Australia, what you can’t trademark, and how to make practical decisions that actually fit how your business operates.

What Is A Trade Mark (And Why Does It Matter)?

A trade mark is a legal protection for a sign that distinguishes your goods or services from other businesses. In Australia, trade marks are administered through IP Australia. If your trade mark is registered, you generally get the right to use (and authorise others to use) that mark in Australia for the goods/services you register it for, and the ability to take action if others use the same or a confusingly similar mark.

From a small business perspective, a trade mark matters because it helps you:

• Protect your brand identity (so competitors can’t get too close to your look and feel)
• Build customer trust by creating consistent branding
• Support growth (e.g. franchise, licensing, distributors, investors and buyers often want to see trade marks locked down)
• Reduce disputes by clarifying who owns what

Trade marks are one piece of intellectual property protection. Depending on what you’re creating, you may also be dealing with copyright, designs, trade secrets, and contracts that lock down ownership and permissions.

What Can You Trademark In Australia?

When you search “what can you trademark”, what you’re really asking is: what kinds of things can function as a brand identifier?

In Australia, you can potentially trade mark a wide range of brand elements, as long as they are capable of distinguishing your business from others.

Business Names And Brand Names

This is the most common starting point. You can trade mark the name customers see and remember.

For example, you might trade mark:

• Your business name (the name you trade under)
• Your product line name (e.g. a signature product range)
• Your app or platform name

One common misunderstanding: registering a business name (or even registering a company) isn’t the same as registering (or owning) a trade mark for that name.

Logos (Including Stylised Words)

If you have a distinctive logo, you can often trade mark it. This can include:

• A graphic device (icon or symbol)
• A “word + design” logo
• Stylised lettering (where the font and layout are distinctive)

Some businesses choose to register both their name as a word mark and their logo as a separate mark. That way, you’re not relying solely on one version of your branding.

Slogans And Taglines

Yes, taglines can be trade marked, as long as they’re distinctive enough to function as a brand identifier.

A practical tip: if your tagline is very generic (e.g. it simply describes what you do), it may be hard to register. A more creative or unique tagline is more likely to be protectable.

Product Packaging, Shapes And “Get-Up”

In some cases, the shape of a product, its packaging, or the overall “look” of a product presentation can be trade marked (sometimes called “shape marks” or aspects of “get-up”).

These can be more complex than standard word or logo marks, because you usually need to show that consumers see that shape/packaging as identifying your brand, not just as a functional design.

Sounds, Colours And Other Non-Traditional Marks

Non-traditional trade marks exist in Australia, including:

• Sound marks (e.g. a distinctive audio sting)
• Colour marks (a specific colour used in a particular way)
• Motion marks (e.g. a distinctive animation for a digital product)

These can be more difficult to register in practice, and they often need careful specification and evidence of distinctiveness. That said, if your brand is built around a recognisable sound, colour scheme, or motion element, it can be worth exploring.

What Can’t You Trademark (Or Is Hard To Trade Mark)?

Just as important as “what can you trademark” is understanding what will likely be rejected, challenged, or not commercially worthwhile to pursue.

Common Words Or Descriptions Of What You Sell

If the “mark” is simply a description of the goods/services (or a common industry term), it’s usually not distinctive enough.

As a general principle, the more directly your proposed mark describes the product/service, the harder it is to trade mark.

Overly Generic Or Widely Used Phrases

Slogans like “best quality” or “great service” are unlikely to work as trade marks, because they don’t really distinguish your business. They’re more like marketing statements anyone should be free to use.

Marks That Are Deceptive Or Confusing

If a mark could mislead consumers about the nature, quality, or origin of goods/services, it may be rejected. Similarly, if it’s too similar to an existing registered trade mark, it can create legal risk.

It’s also worth knowing that even if a similar name or branding isn’t registered as a trade mark, you may still face issues under passing off or misleading and deceptive conduct laws if your branding causes confusion in the market. This is one reason trade mark searches and early legal advice can save you time and money.

You don’t want to invest heavily in branding only to be forced into a rebrand later.

Functional Product Features

Trade marks protect branding, not functionality. If a product shape or feature is mainly functional (i.e. it needs to be that way for the product to work), it’s usually difficult to protect as a trade mark.

That doesn’t mean you have no protection options. Depending on the situation, other IP rights (like designs or copyright) or strong contracts may be relevant.

Someone Else’s Copyright Or Brand Elements

This one sounds obvious, but it comes up more than you’d think: you generally can’t (and shouldn’t) apply to register a logo if you don’t have the rights to use it. For example, if a designer created your logo and you haven’t properly documented ownership or licensing, you may not have the permissions you need to use and register the logo as your trade mark.

If you’re working with contractors, designers, developers, or agencies, it’s worth locking down IP ownership and usage rights early with clear written agreements.

How Do Trade Mark Classes Work (And What Should You Register)?

When you register a trade mark in Australia, you don’t just register the mark in the abstract. You register it for certain categories of goods and services, called “classes”.

Choosing classes is one of the most practical parts of trade mark strategy, because it affects:

• What your protection covers
• How much your application costs
• How useful the registration is as your business grows

Start With What You Actually Sell Now

If you’re early-stage, it’s tempting to try to cover everything “just in case”. But trade marks work best when they’re aligned with your real commercial use.

Ask yourself:

• What products/services are you offering today?
• What’s your realistic 12–24 month expansion plan?
• Are you planning to license the brand, franchise, or create sub-brands?

Think About Your Business Model (Not Just Your Industry)

Two businesses in the same “industry” can have totally different trade mark needs based on how they operate.

For example, a startup may:

• Sell a physical product directly to customers online
• Operate as a subscription service
• Run a marketplace
• Offer consulting alongside software

Your trade mark classes should reflect that reality.

Don’t Forget The Legal Foundations Around Your Brand

Your trade mark sits within a broader legal framework. If you have co-founders or investors involved, it’s also important to document brand ownership and decision-making clearly, often through a Shareholders Agreement.

Similarly, if you’re operating through a company, a properly drafted Company Constitution can help clarify governance and how key IP assets are controlled as the business grows.

Common Trade Mark Scenarios For Startups (And What To Do Next)

Trade marks are not one-size-fits-all. Here are a few scenarios we regularly see with Australian startups and small businesses, and how to approach them.

You’re Launching With A Name, But No Logo Yet

In many cases, it can make sense to protect the name first (as a word mark), especially if your brand name is the main thing customers will search for or say out loud.

You can always register a logo later once your visual identity is settled. The key is not delaying protection so long that someone else gets in first.

You’ve Got A Logo, But You Also Use Different Variations

If your logo changes across different platforms (e.g. stacked vs horizontal versions), you’ll want to consider which version provides the most consistent protection. Sometimes that means registering a simpler version that reflects how the mark is used most often.

This is also where strong contracts help. If a designer created your logo, ensure the agreement properly deals with IP assignment and usage rights (otherwise you can end up paying twice or facing disputes).

You’re Building An Online Store Or App

For online businesses, your brand is often experienced through your website, checkout process, and customer communications. Trade marks matter, but so do the legal documents that govern how customers interact with you.

If you collect customer data, you’ll usually need a Privacy Policy that explains what you collect, why you collect it, and how you handle it.

And if you’re selling online, your customer-facing terms should be clear about payment, delivery, cancellations, and liability. Depending on your model, that might be website terms, e-commerce terms, or a tailored customer contract.

You’re Hiring Staff To Build The Brand With You

If you’re bringing on employees or contractors, be careful: your brand value is shaped by people, but legal ownership should remain clear.

Having a clear Employment Contract can help cover confidentiality, IP created at work, and expectations around brand use.

It also helps reduce disputes if someone leaves and later starts a competing business or tries to reuse your marketing materials.

You’re Collaborating With Another Business

Partnership campaigns, co-branded products, influencer arrangements, and joint ventures can be great for growth, but they also create brand risk if boundaries aren’t clear.

In many cases, it’s wise to start with a confidentiality agreement so you can share ideas safely before you go deeper.

What Else Should You Do To Protect Your Brand (Beyond Trade Marks)?

Trade marks are powerful, but they’re not the whole story. A practical legal strategy often combines IP protection with smart contracts and compliance.

Use Strong Customer Terms And Consumer Law Compliance

Even with trade mark protection, a brand can be damaged quickly by customer disputes and negative reviews, especially if your refund or warranty approach isn’t compliant.

Australian Consumer Law (ACL) affects how you handle refunds, repairs, replacements, advertising claims, and product quality. It’s worth getting this right early, particularly if you’re scaling e-commerce or subscription sales.

Document Ownership Of IP Created For Your Business

Your logo, website copy, packaging artwork, and software code may all be intellectual property. If other people create those assets (designers, developers, agencies), ownership can become messy if you don’t have clear written terms.

This is especially important if you’re raising capital, selling the business, or entering a licensing arrangement later.

Have The Right Structure And Agreements For Growth

As you grow, your trade mark becomes more valuable. You may license it, franchise it, or use it across multiple product lines.

That’s why it’s important to align your legal structure and governance documents with your IP strategy. If you’re setting up (or restructuring) your company and want clear rules about how the business operates and how key assets are managed, a solid company set up can make a real difference long-term.

Key Takeaways

• If you’re wondering what you can trademark, the short answer is: you can often trade mark brand identifiers like names, logos, taglines, and sometimes shapes, sounds, and colours, if they’re distinctive.
• Generic or descriptive words, misleading marks, and functional product features are usually difficult (or impossible) to register as trade marks.
• Trade marks are registered in classes, so a practical strategy is choosing protection that matches what you sell now and where you’re realistically heading next.
• Trade marks work best when paired with solid legal foundations like clear IP ownership, customer terms, and well-documented business arrangements.
• If you have co-founders, staff, or contractors involved, make sure ownership of your brand assets is clear in your business documents (not just “understood”).

This article is general information only and is not legal advice. If you’d like advice for your specific situation, get in touch with a lawyer.

If you’d like a consultation on trade marks and protecting your brand for your startup or small business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.