If you’ve been reading my blog for a while, you probably understand just how important it is that you own the trademarks for your brand. You may be toying with the idea of just handling it yourself. You’ve searched Google for identical brands. You’ve searched the United States Patent and Trademark Office website for your brand name. You’ve peeked at the trademark application and it looks simple enough. Plus, you have friends who’ve told you how easy it is and that you should just file your trademark application yourself.
“You don’t need an attorney for that” they’ve said.
Your friends couldn’t be more wrong.
Trademarks are one area of your business that I believe you absolutely must leave to a trademark attorney. One of the very first things I do for my trademark clients is analyze their proposed trademark and offer my professional opinion on whether it makes for a strong trademark that they can actually register and enforce.
Then, I have a full trademark search done for them, review the report and write up a professional opinion on whether their name conflicts with other trademarks that are out there. Then, we may have a hard conversation about whether they need to go back to the drawing board on the name — I don’t sugar coat a thing for my clients because I’d much rather them change their name at this point than face serious trademark issues later on because they’ve infringed on another brand. This part of the process may get frustrating for them, and I completely understand but at the end I know that they’ll be happy owners of a brand they love. This is only part of the value you receive when you hire a trademark attorney.
Handling trademarks on your own is no different than rolling dice and hoping for the best.
The difference between you and a trademark attorney is that we know, based on the law, previous case history and trademark decisions, and our prior experience how to assess the level of risk with a name or logo that our clients want to register as a trademark. So while you may honestly believe that you’ve done your due diligence you are missing a huge piece to the puzzle. Also, because you’re a small business owner you’re likely to underestimate the chance of being “found” by another company and actually facing a trademark infringement issue down the road.
I know from my professional experience that small businesses are “found” all of the time and typically by larger companies, with deeper pockets.
The best case scenario of dealing of accidentally tip-toeing (infringing) on another brand’s trademark is that you’ll have to rebrand. But, even a rebrand can cost several thousands in addition to legal fees. Worst case scenario? If you’re unable to nip the issue in the bud by dropping the infringing name and rebranding then you’ll have to either pay a healthy settlement fee or fight it out in court. According to The Wall Street Journal, legal costs at this point can run from $10,000 to $50,000, or several hundred thousand dollars.
Dealing with your Intellectual Property is playing in the major leagues. But, I can show you better than I can tell you…
An Australia-based children’s clothing line formerly named ZaraBumba had to rebrand after receiving a trademark infringement notice from Zara because of the similarity between the names. She’s now operating under the name Z and Co.
A Washington-based craft beer company formerly named Drop Anchor Brewery had to rebrand after receiving a trademark infringement cease and desist from San Francisco-based Anchor Brewing Co. The owner originally handled the trademark process on his own and the second time around he worked with a trademark attorney. He also acknowledged the financial burden of rebranding, “There’s no animosity, other than it costs us an arm and a leg.”
A Maryland, faith-based apparel company faced a trademark infringement battle after receiving a cease and desist from mega brand Under Armour. The Washington Post reported, “under Armour’s attorneys at the Washington-based Finnegan, Henderson, Farabow, Garrett & Dunner, one of the world’s largest intellectual-property firms, wrote that Armor & Glory should have to destroy all products, hand over its domain name and any profits, and pay Under Armour’s attorney’s fees and damages of $100,000 or more.” I peeked at the trademark records for the status of this case, and the Trademark Trial and Appeal Board found in favor of Under Armor. The smaller company has a new trademark application in for a modified version of the trademark — this time it’s being handled by a trademark attorney.
You get the gist…intellectual property law is a beast and shouldn’t be taken lightly.
While I hate seeing creative entrepreneurs face these issues I do wish they were more widely publicized. We need more awareness in creative entrepreneur communities because it happens frequently. I love when a client comes to me early on so I can help them avoid the expensive, intellectual property law drama. The fact that they are simply doing business puts them in a high stakes legal game whether they realize it or not.
This is one way to rise to the occasion — if you believe in the brand you’re building, do right by it and let go of the inclination to DIY. Give it the professional attention it deserves up front by working with an attorney well versed in intellectual property law. Don’t set it up in a way that’ll only lead to legal and business risks later.
Treat your brand as a business asset not a liability.
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