This is a story of three, women-led businesses who all made the same mistake. Naively. Unknowingly. With the very best of intentions. A mistake that cost their founders time, money and a whole lot of mental anguish. 

The mistake? Not trade marking their business names. 

In the spirit of supporting fellow female entrepreneurs, as part of our She Built This series, they’re sharing how they went wrong, how they made things right – and what they learned along the way.  

The Clothing The Gaps team outside their flagship store in Melbourne, and co-founder Laura campaigning to Free The Flag. (Photography by Benny Clark @djaambi_ photographer)

David versus Goliath

When Gunditjmara woman Laura Thompson and Sarah Sheridan named their Indigenous-owned certified social enterprise, B Corp and fashion brand ‘Clothing The Gap’, they thought the only challenge might come from the government’s Closing the Gap strategy. 

This didn’t happen. Instead, a couple of months after the Melbourne-based duo lodged their trademark application, they received an opposition notice from multi-billion dollar global apparel giant, The Gap. 

“I still remember [our then-Chief Creative Officer] walking up the steps at our old, tiny, little office in Preston, and she was like, ‘The Gap has started following us on Instagram!’” Sarah recalls. “I just thought, ‘oh no, this is not good’.”

Laura adds: “The lesson for us was that just because you’ve filed a trade mark, that doesn’t mean you’ve been given the green light to use it.” 

Two years after receiving the opposition, Clothing The Gap finalised negotiations with The Gap and agreed to add an ‘s’ to their name, becoming Clothing The Gaps. Cue the costly rebrand across all of their merchandise and marketing materials. 

“Our biggest advice?” says Sarah. “Google your business name and see what else comes up. You need to understand the full IP process and where your business is at with it.”

Land Lab’s prenatal capsules.

The $18,000 lesson

Over in Sydney, Tess Robinson was in her early twenties when she launched her creative agency, 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 would learn this three years into her business, when an IP lawyer flagged that ‘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. 

“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. And before they get to work, you can bet they ensure that founders have secured exclusive brand rights to their business name. 

The Digital Picnic team and founder, Cherie Clonan. (Photography by Heist Creative)

You had me at cease and desist

Melbourne’s Cherie Clonan launched her digital marketing agency as The Social Playground – a name she was assured, by a registered IP lawyer at the time, was ironclad. 

Three months later, a cease and desist letter arrived.

“When that email came through, I was like, it’s all over,” recalls Cherie. 

“We were told [our name] was safe because it had ‘The’ before the next two words and that was enough, apparently, to differentiate,” says Cherie. “It’s absolutely not. So, we got cease-and-desisted very quickly.”  

The letter came from Sydney-based advertising agency, Social Playground. “And honestly, fair enough, on behalf of that business,” says Cherie. 

Quick-smart, Cherie changed her business name to one that has stuck firm for more than a decade. Today, she’s the proudly Autistic CEO of The Digital Picnic. 

“I love our name,” says Cherie. “But to think that I had made another business feel like I was copying them, in any way, made me feel absolutely awful… We’d saved all our pennies for our little first ever-investment [in IP] but it didn’t quite check out. Lessons were learned.”

Not securing a trade mark is a common blunder made by Australian business owners. 

According to IP Australia, only seven percent of active small and medium enterprises in our country hold registered trade marks. That’s millions of brands operating without exclusive rights to their names.

And if you are someone who’s been putting off protecting your IP, consider this your nudge to make it a priority. 

Your future-self will thank you for it.