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5 Key Steps to Take Before… Launching a Brand in an Emerging Market

  • 27 June 2022
  • Studio Legal

Written by Gital Ben-Zvi, Alyce Evans and Principal, Jennifer Tutty

Many great businesses start with identifying a ‘gap’ in the market. Sometimes, there is nothing that exists to solve a particular problem. Often, there are a few businesses beginning to pop up, but the space is still relatively new.

However, as we all know, once a gap in the market is identified – the market moves fast! If it’s a good idea, you can guarantee that more and more businesses will begin releasing their own products or services and battle to fill the space.

If you’re thinking about entering a fast-growing industry sector as a new provider, you’ve probably got plenty on your mind as you race to become the ‘go to’ brand for consumers.

In this blog, we provide simple, key steps to take NOW, to protect your great new idea and position your brand as a go-to business in emerging, fast-growing markets.

Real world example: The rise of ‘no-alcohol’ alcoholic beverages

Take the no-alcohol ‘alcoholic’ beverage industry for example. It’s growing… fast!

We’ve all heard of ‘0% alcohol’ drinks by now. Heineken has been pushing their 0% beer offering as the recent title sponsor of the Australian F1 Grand Prix and new Australian entrants to the market, ‘Heaps Normal’, have experienced startling growth since their inception in 2019.

Among other key growth indicators, the Australian Trade Mark Register is a dead giveaway for the exponential growth of the industry and the non-alcoholic beverage class is getting more and more crowded with new applications.

Entrants to the market are flocking to claim their stake in the space. The natural first step is obtaining registration for the trade mark that will sit front and centre of the brand.

Claims for ‘alcohol-free’ beverages in trade mark applications in the past year have increased by 24% compared to the previous year and 57% compared to the same period 5 years ago.

Real world example: NFT trade mark applications on the rise globally

What about NFTs? They may just be the most persistent innovation to pop up in our newsfeeds in in the past decade.

The Trade Mark Register reflects this too. Trade mark applications claiming ‘virtual goods’ increased by 20% in the past year, and a whopping 120% compared to the same period 5 years ago.

Top Tip: Protect your brand assets from the beginning

While branding is such an important factor for businesses looking to stand out from the crowd (if not the most important), protecting branding assets is something that many new entrants often overlook until it’s too late.

This can be a costly and time-consuming oversight to address in retrospect.

Protecting your brand assets from the beginning means ensuring that you have your trade marks lined up and ready to go when you enter the market.

You’re going to need to build a reputation, fast, if you want to stand out. The last thing you want is to have to change your brand name or logo after months of trading, because you cannot register it as a trade mark or (worse) someone sues you for infringing their registered trade mark!

Trade marks should be something that you consider at the planning stage of your new business.

Some key steps to take include…

1. Choose a brand name that is unique

Think outside the box and undertake some general searches (including on Google, and social media platforms) to make sure that your desired brand name isn’t already taken.

2. Choose a brand name that isn’t descriptive of the products (goods and/or services) that you will be selling

Trade marks that are descriptive of the goods and services that are being offered are often rejected. As a general rule, anything that indicates the kind, quality, quantity, intended purpose, value, geographical original, or some other characteristic of the relevant goods and/or services, will be considered descriptive.

A trade mark that alludes to what you’re selling (rather than specifically identifying or describing it) may be more effective.

3. Get your desired trade mark(s) checked by an IP lawyer before settling on a name or logo

An intellectual property lawyer or trade marks attorney will be able to undertake a more comprehensive search of the trade mark register and the marketplace you wish to trade in, often called a ‘brand check’. In doing so, they can identify other business’ trade marks that may block your application, as well as other legal hurdles that you may need to overcome.

When conducting these brand checks, your lawyer will apply their specialist knowledge regarding how applications are reviewed by the trade mark office, as well as considering the legislation and case law. This enables them to complete a more comprehensive analysis of the likelihood of your trade marks being registered, as well as identifying any likely risks.

Having this search completed before you formally apply for a trade mark can help you to make an informed decision about whether to proceed with your name and logo, or whether to choose something different. 

Brand check legal fees are you something you MUST include in your start-up budget. Remember, your brand is everything when entering emerging, fast growing markets.

4. Don’t start investing in branding and marketing before your trade mark is accepted

Before you start sharing your new brand name and logo everywhere, we recommend applying for a trade mark and waiting for it to be ‘accepted’. This will prevent time and money being wasted on advertising and marketing a brand name or logo that you can’t actually use, as well as the costs of re-branding your business.

We recommend that your IP lawyer also drafts your trade mark application, to ensure all necessary classes and specifications are correctly prepared and to ensure that your trade mark application is not void (there are things that can go really wrong when applying for a trade mark, like applying in the wrong applicant’s name).

5. Get in early!

When trade mark applications are assessed, the trade mark office will check whether someone else has already registered that brand name or logo. If they have, this may block your trade mark application.

Therefore, if you have a brand name and logo you love, get in early! This is particularly important in new, fast-growing industries, where businesses will be acting fast to secure their spot in the space.

Steps to take right now

They say never follow the crowd, but in the IP world, if you’re the first one there, the crowd follows you.

If you’re looking to enter a growing market we strongly recommend getting the trade marking process underway before someone else gets there first.

As always, if you need any assistance or advice about trade marking feel free to contact us.

Summary: 5 key steps to take before launching a brand in an emerging market

1. Choose a brand name that is unique.

2. Choose a brand name that isn’t descriptive of the products (goods and/or services) that you will be selling.

3. Get your desired trade mark(s) checked by an IP lawyer before settling on a name or logo.

4. Don’t start investing in branding and marketing before your trade mark is accepted.

5. Get in early!

Written by Gital Ben-Zvi, Alyce Evans and Principal, Jennifer Tutty

Published 18 May 2022

Further information

If you have any questions about trade marks or would like our help to conduct a brand check or apply for a trade mark, please contact us through our online form or at hello@studiolegal.com.au.

To learn more about trade marks, check out our blog: ‘Top Trade Mark Tips: How to Use Trade Marks to Protect Your Brand’.

Photo by Keila Hötzel on Unsplash.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.