Tess Robinson paid $18,000 to keep her business name. 

The Sydneysider was a couple of years into running her creative agency, Smack Bang Designs, when an Intellectual Property (IP) lawyer delivered her some bad news – ‘Smack Bang Designs’ was already registered as a trade mark by another designer, in another state. 

“To cut a long story short, I was technically infringing on her business name,” says Tess from her current home in the coastal town of Lennox Head, NSW, where she lives with her husband and two children. 

Tess was 22 when she started Smack Bang Designs. “I had not even finished a degree – let alone worked in another agency,” she says. “I was young, dumb and fearless.”  

And, unwittingly, operating under someone else’s trade mark. 

“She wasn’t actually using the business name but, because she had registered it before me, after many negotiations, I ended up having to pay her $18,000,” says Tess.  

“At that time in my business, that was a huge amount. But I had so much momentum with Smack Bang that I decided to grin and bear it – and carry on with my life.”

Today, Tess’ Smack Bang team (they’ve dropped Designs) builds brands with hundreds of clients. Before they get to work, they ensure that founders have gained exclusive brand rights to their business name. A process that, more than a decade on from her own dilemma, Tess has watched become considerably more challenging. 

“When I ran into that trouble, trade marking wasn’t as tricky a space because there weren’t as many businesses. Today, the white space in IP land is minuscule. Every name is taken,” she explains.

“A client comes to us and they think they have a name. We run it through our IP lawyer’s system and she’s like, ‘sorry, that’s got no chance of passing’. We go back and forth with our IP lawyer, often five or six times, with bunches of names to check the viability before we can present anything to the client. It’s such a headache.”

Smack Bang’s name-generating venture, Rodeo, was launched in response to this very pain point – and helps new business owners land on a winner that legally checks out. But beyond a distinct name, Tess believes the mark of a defensible brand is a robust identity. 

“We really try to build our client brands in a strategic way that ensures that, if they were to get copied, it would be very obvious,” she says. “It’s less a question of, how do we protect our IP? And more around, how do we create brands that are so strong in their own right that a copycat can’t even come close [and if they try], it just feels hollow.”

Tess has seen this happen first-hand, with Smack Bang. Years ago, their then-tagline, ‘we elevate brands’, showed up on the websites of several other businesses.

“We ended up getting it trade marked but then, about a year or two later, we felt like we’d grown out of it and we stopped using it,” says Tess. 

“We’re always going to strive to be the best,”

“We move at the speed of light – so we’re not too stuck on protecting those sorts of assets. Because I know that if people do start to try and copy it, we’ve already moved on to the next thing.” 

Outside of her agency, the next thing for Tess is Land Lab, a line of science-backed supplements containing native Australian plants. Launched by a group of co-founders, Tess’ new business has been two years in the making.

“IP has been a huge part of our discussions in the Land Lab team, from the very start,” she says. 

“Native foods and the knowledge around them are Indigenous Cultural and Intellectual Property. We don’t make claims based on traditional knowledge or ‘traditional use.’ Instead, our work with traditional owners focuses on ethically sourcing these species, guided by contemporary nutrition science and proven health benefits. 

“With Free, Prior and Informed Consent and Access & Benefit-Sharing agreements in place, we make sure our sourcing and manufacturing benefit communities while keeping cultural knowledge separate from our product claims.”

The Australian native bush food industry is reportedly worth $50 million but, as Tess points out, only two percent of businesses in this space are Indigenous-owned. “It really is getting exploited, so we’re doing our best to mitigate that.”

Land Lab has partnered with a 100 percent Indigenous-owned co-operative, BBIEC, who manage their supply chain. “And we share a portion of profit with our growers to ensure economic benefits flow to all levels of the value chain,” says Tess. 

In naming Land Lab, Tess ran into a familiar struggle.

“Even things that you don’t expect to be an opposing force often are, these days, because there are so many businesses filing for so many different classes for their trade mark,” says Tess. 

“What we’re more concerned about is showing competitors how to do it with integrity.”

“Also, pretty much every brand wants to be a globally accessible brand now, as well. So we’re not just competing in the IP landscape within Australia. We need to know, is that name available in the US, China, Japan…? So it becomes a real matrix to try and get something through.”

There is no such thing as a worldwide trade mark – which means you need separate applications for protection in each country or region where you want legal rights.

While Tess does own the Land Lab trade mark, much like at Smack Bang, she’s focussed on being a market leader, rather than protecting every piece of their IP.   

“We’re the first supplement brand in the world to use Australian natives in an evidence-based way – and we’re always going to strive to be the best,” says Tess. 

“What we’re more concerned about is showing competitors how to do it with integrity. If you are going to copy us and go down this track, here is the blueprint to do it the right way. 

“Don’t come in with extractive practices in an industry that’s already been exploited. We risk replicating the patterns seen with quinoa, açai, and maca, where Indigenous custodianship is marginalised even as global demand surges.” 

Her general IP advice for new founders is simply: trade mark your name. 

“And find an IP lawyer who’s not going to charge you just for opening an email,” she says. 

“Our Smack Bang IP lawyer always does the first round of name checks for free, so you can get a good sense of the chance that they will pass. Find a good lawyer who genuinely wants to help, knows their sh*t – and can be a real support.”