"The Gamechanger" – What Makes or Breaks a Good Brand Name from Your Lawyer’s Perspective

by Olaf Kretzschmar

trade mark protection for buzzwords is hairraising

There is a German saying:

"Der Wurm, muss dem Fisch schmecken, nicht dem Angler!""It translates to: "The worm must appeal to the fish, not the fisherman!".

With this in mind, what makes or breaks a great brand name? Ask ten people on the street – or even ten marketing experts – and you’ll get ten different answers.

And yet, what feels like Christmas and Easter rolled into one for a marketing guru is, all too often, a waking nightmare for us intellectual property lawyers.

Because here’s the uncomfortable truth: what feels like a Game Changer in a pitch deck can, from a trade mark perspective, be a one-way ticket into a dispute, either with the Trade Mark Office or with your competitors.

Buzzwords and the Seduction of Branding

We live in a business culture where brand names are rarely about clarity. We don’t just want to describe what we do; we want to leverage, synergise, and unleash. Instead of “cleaning service” or “software company”, founders want names that are:

Empowered

Agile

Future-Proof

The word salad is endless: Trail Blazer, Visionary, Authentic, Dynamic, Transformational, Cutting-Edge, Customer-Centric, Resilient … the list goes on.

Each is designed to sound world-class and purpose-driven. But here’s the catch: From a lawyer’s perspective, most of these words are dangerously overused and therefore most likely "purely descriptive", as in the eyes of a trade mark examiner of any Trade Mark Office in any country, these overused words are "widely used in the industry to describe the goods and services...and are therefore required to be used by other traders in the industry, without impropper motives to describe the goods and service ...". Descriptiveness is an obstacle to registration. Your application will be refused.

If not descriptive, but simply allusive with a so called "secondary meaning", they are in fact registrable, but because of the popularity, already registered for other trade mark owners, in which case your trade mark application will be refused, because of the "likelihood of confusion" between your mark a a registered one. In Registrar of Trade Marks v Woolworths Limited [1999] FCA 1020, French J referred to the tests set out in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82 (Southern Cross), where Kitto J set out a number of propositions often used to assess the likelihood of deception or confusion. French J restated these as follows at [50]:

(i) To show that a trade mark is deceptively similar to another it is necessary to show that a real tangible danger of deception and confusion occurring. A mere possibility is not sufficient.

(ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt.

Why Buzzword Work (and Why They Don't)

From a marketing angle: buzzwords are fast food for branding. They instantly suggest you are innovative, impactful, and best-in-class. They “optimise” perception and buy you credibility with a single phrase.

But the downside: if everyone is a Thought Leader with a 360-Degree Approach, the words collapse under their own weight. They stop meaning anything. What once sounded authentic starts sounding hollow.

From a lawyers angle: The Nice Classification System: Here is where the marketing dream collides with legal reality. Every trade mark application must specify the goods and services it covers. To avoid chaos, the world agreed on an international classification system – the Nice Classification System. And no, it’s not called “Nice” because it sounds friendly. It’s named after the city of Nice in France, where the international treaty was signed in 1957.

The system divides everything into 45 classes: Popular examples are:

Class 25 → Clothing, footwear, headgear

Class 35 → Business consulting, advertising

Class 41 → Education and training

Class 9 → Software, electronics.

So if someone registers Game Changer® in Class 41 (business coaching), you cannot use it for your own coaching venture. Even if your intentions are “nice”, the law is very clear.

The Buzzwords Already Taken

Yes, these buzzwords are already registered in Australia and abroad:

• Game Changer® – marketing + designservices + sporting articles

• Humble® – clothing + procecessed hemp seeds

• Gratitude® – aerated mineral waters, advertising

• Trail Blazer® – welding apparatus + clothing

• Pivot® – artificial manures + cleaning tools

• Next-Gen® – publication services + advisory services

• Visionary® – wine + charitable fundraising

• Leverage® – advisory services + sporting articles.

For most other Nice classes they had been refused registration for the reason of being purely descriptive!

The 58 Overworked Buzzwords

Here’s the hall of fame of overuse – nearly all of which are legally problematic:

Unleashed, Empowered, Game Changer, Strategy, Trail Blazer, Empathy, Humble, Gratitude, Agile, Pivot, Leverage, Disruptive, Visionary, Innovative, Transformational, Scalable, Synergy, Authentic, Thought Leader, Impactful, Curated, Engaged, Best-in-Class, Value-Driven, Customer-Centric, Future-Proof, Dynamic, Empowering, Collaborative, Holistic, Revolutionary, Next-Gen, Transparent, Inclusive, Proactive, Sustainable, Cutting-Edge, Bespoke, World-Class, Elevate, Optimise, Resilient, Blue Sky Thinking, 360-Degree Approach, Lean In, Out-of-the-Box, Mindset Shift, Purpose-Driven, Stakeholder Engagement, Level Up, KPI-Focused, Monetise, Win-Win, Low-Hanging Fruit, Digital Transformation, Move the Needle, Best Practice, Benchmarking.

Courts and Trade Mark Offices don’t care if “Elevate” sounds motivational. If it’s already on the register in your class, you won’t get it – and worse, you may get sued for using it.

👀 Marketers vs Lawyers

The marketer’s perspective:

“Buzzwords are engaging, curated, and designed to move the needle. They make us sound cutting-edge, world-class, and purpose-driven. Do they get overused? Yes. Do they still convert? Absolutely.”

The lawyer’s perspective:

“Buzzwords are a minefield. Nearly all of them are already registered in multiple Nice classes. Using them without clearance is gambling with cease-and-desist letters.”

What Really Makes a Good Brand Name

The winning formula is simple:

1. Distinctive – Not descriptive of your goods/services.

2. Memorable – Short, punchy, and easy to recall.

3. Clearance-Checked – Free in your Trade Mark Nice class and all similar ones.

4. Protected – Registered, so you own it.

Without these four, your name is just marketing fluff waiting to collapse.

OWN Your Buzzwords

Here’s the bottom line:

Only a trade mark registration makes you the legal owner of a brand name.

Without it, you’re just renting a word. With it, you can build, defend, and monetise your brand.

So, if you’ve got favourite buzzwords you’re building on – Disruptive, Innovative, Authentic, Future-Proof – don’t just hashtag them.

File them. Own them. Protect them.

Because the next time you proudly launch your Trail Blazer programme or your Empowered academy, you don’t want to be met with a cease-and-desist letter instead of a client enquiry.

And from both a marketer’s and a lawyer’s point of view – that is the kind of low-hanging fruit you really don’t want to hand over to your competitors.