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Fitness culture has exploded across social media, with the benefits of health and well-being becoming integral to people's daily routines, identities and lifestyles. While successful influencers have enormous global audiences, can their 'trade mark move' be protected?
Influencers like Shannan Ponton (Australia's most successful trainer for The Biggest Loser Australia) and Kayla Itsines (Personal Trainer and founder of the Sweat app who has 16M followers on Instagram), are seen as experts or trendsetters on platforms like Instagram and TikTok, and leverage their significant social media followings to promote fitness products, services or ideas.
An exercise move trade mark
Recently, fitness influencer Violeta De Marco, filed a trade mark application for one of her exercise moves. But can an exercise move be a trade mark?
On 17 May 2025, Ms. De Marco, filed Australian trade mark application no. 2548710 for a fitness move covering the following services in Class 35:
V. D M Cane Twist; Violeta Dee; V. D M Full Body Releasers; V. D M Curling Frog- hold; V. D M Airplane- up/ down/ backwards and forwards- hold; V. D M Seal in and out; V. D M Series; V. D M Airplane Activation – up down/ backwards and forwards; V. D M banned Moop; Body Releasers; V. D M'S – Shake, Windmill, Knee circles, twist, shoulders up/ down, rolls, hips in/ outs- side to sides; V. D M Joint Releasers; V. D M Banned Straddle press to handstand; Violeta De Marco
A two-minute video is included with the application showing a woman (presumably the Applicant), performing the move, along with the following description/endorsement:
Full body Releasers are used to release your joints & muscles so you can continue your training without any strains/ tightness helps with pain and releases lactic acid build up. These series will help release & relieve, restart your muscles, so you can continue your intense workouts.
Australian TM law & badge of origin
Under Australian law, any "sign" used to distinguish the goods or services of one trader from those of others can be a trade mark (Section 17 of the Trade Marks Act 1995), which is a deliberately broad definition and can encompass movements or gestures which, in principle, may cover Ms. De Marco's exercise move.
In addition, representing a movement mark requires a combination of video and precise narrative description that defines the movement. However, the key requirement is that the sign be capable of distinguishing: consumers must perceive the movement as a badge of origin for the relevant goods or services, not merely as a method of exercise or technique for training.
Whilst a movement may be registrable if it is presented and used consistently as a brand cue, it is unlikely that a lengthy video of a person exercising/training would be able to satisfy the badge of origin requirement.
The badge of origin requirement is practically an issue of immediacy. This means that consumers must be able to immediately look at the sign and recognize that it is being used as a trade mark.
What makes a 'moving logo' distinctive?
Most exercise moves will likely fail because they are either non-distinctive or generic within the industry, or functional in achieving fitness outcomes. Trade mark law does not grant monopolies over features competitors need to use, and a movement that is necessary or commonly used to perform an exercise will not be seen as a source identifier.
The distinctiveness inquiry is ultimately about consumer perception: if the public sees a move as a type of exercise rather than as your "moving logo," it is not a trade mark.
There are examples of successful movement trade marks. IP Australia currently has 123 registered movement trade marks, including for example, Toyota's jump and Snooze's blinking 'OO'.
These trade marks are stylised, non-functional movements/gestures and as noted above, are immediately recognisable as trade marks. A short exercise move then or poise, perhaps used consistently at the start or end of classes, embedded in advertising, or animated in an app – may be able to operate as a trade mark.
Distinctiveness can be inherent if the motion is sufficiently unusual or acquired through use where evidence shows that consumers associate the movement with a single source. In practice, pairing the movement with a distinctive name and visual or audio elements will strengthen the signal that it is branding rather than technique.
In fitness, businesses commonly protect names and logos rather than the constituent moves of a workout, given the distinctiveness and functionality issues discussed above. You will not find a trademark on terms like "Pilates" exercises or CrossFit's standard moves (e.g., burpees or kettlebell swings) which are functional techniques open to anyone to use.
Instead, CrossFit, Inc. has trademarked its name for fitness training and education goods/services, clothing, nutritional supplements, and exercise equipment in Classes 16, 41, 25 and 28 which are commonly covered by trade marks related to fitness as well as Class 9 for apps.
While movement trade marks can be sought, the resulting rights target the use of the movement as branding in trade. Importantly, they do not prevent trainers or the public from performing the motion for exercise or instruction – non-trade mark (functional) use is not infringement.
Enforcement will therefore focus on competitors who appropriate the movement in marketing in a way likely to cause confusion.
Key takeaways
In Australia, whether it be a routine or a pose, an exercise move can qualify as a trade mark only:
- where it operates as branding
- is distinctive (often through sustained use), and
- is not functionally required by the activity.
Applicants should treat it as a moving logo, using it consistently across touchpoints, and document market recognition. That strategy gives the best chance of registration and meaningful, enforceable protection without encroaching on the public domain of everyday exercise techniques.
How we can help
If you would like assistance to register or defend a trade mark, obtain a clearance search, monitor the market or any other trade mark services, reach out to our team for strategic expert advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
