When you’re building your creative business, when’s the right time to hire an attorney?
One common issue many artists and creative entrepreneurs face is seeking legal counsel too late in the game. All too often, when they embark on a new project or initiative, artists prioritize hiring graphic designers, brand consultants, and web developers over engaging with an attorney. But this approach may lead to big problems down the road. Consulting with an attorney early in the development of a project can help ensure the strength and viability of your brand while avoiding potential infringement on others’ intellectual property.
When you seek legal advice after you’ve already invested significant time and resources into building your brand, it’s more difficult for an attorney to effectively guide and support you. For instance, being emotionally and financially attached to your brand can make it harder to accept and act on the feedback your attorney provides.
Let’s explore why it’s essential for creative entrepreneurs to involve an attorney sooner rather than later and how doing so can save you time, money, and heartache in the long run. But first—let’s talk about the difference between various kinds of trademarks, and why those variations matter when you’re considering when to hire an attorney.
A common misconception is that all trademarks provide the same level of protection and value, but this is fake news because not all trademarks are created equal.
A strong trademark is a valuable asset that appreciates in value over time and can grow and evolve with your business. Strong trademarks are easily defensible, which means you can safeguard your intellectual property more effectively. They also offer the flexibility to expand your brand’s reach through new products, services, or industries.
Weak trademarks, on the other hand, present a variety of challenges. They are often harder to defend, meaning you may incur higher legal costs and, in some cases, may not be able to protect your brand at all. And if you can’t enforce your trademark rights, it could lead to competitors encroaching on your brand’s territory, which might dilute its value. Weak trademarks also struggle to build value over time, which could limit your business’s growth potential.
Now let’s get deeper into the different types of trademarks, and how each type falls on the spectrum, strongest to weakest.
The Big Three [Primary Types of Trademarks]
Fanciful Trademarks
At the strongest end of the spectrum are fanciful trademarks. These are invented words that have no connection to your products or services. Examples include Google and Kleenex, which were made-up terms that are now instantly recognizable. Fanciful trademarks are highly desirable because they are easily defensible and can build value over time. Although larger companies often have legal teams to help create and maintain such strong marks, creative entrepreneurs can also leverage the power of owning fanciful trademarks.
Generic Trademarks
Generic trademarks are on the opposite end of the spectrum. These trademarks are essentially nonexistent in the legal sense. You cannot register a generic trademark with the U.S. Patent and Trademark Office, because it refers to an industry term or word that already has an established meaning. As a result, you can never exclusively own or defend a generic trademark — no matter how good it looks or how shiny it is — which makes it a poor choice for building a valuable brand as an artist. You don’t want to be in a position where you have invested heavily in a generic mark. At Creative Genius Law, our goal is to flag issues of generic trademarks up front, so that you can make decisions that help you invest in a brand that is going to build in value over time.
Descriptive Trademarks
One step above generic trademarks are descriptive marks, which describe a product or service or a key characteristic, feature, or quality of it. These trademarks can’t be owned outright, but you can invest in them over time to make them distinctive. Eventually, you can prove that you invested in that mark and transformed it from descriptive to distinctive, as it is applied to your products or services. But while you’re investing in your trademark, there will be a period of time in which you’re vulnerable.
When You Should Think About Trademarks As You’re Building Your Business
To protect your intellectual property and the creative assets you’re building, we recommend engaging a trademark attorney early in your business-building process. If you’ve already invested in building up a weak trademark (for instance, by hiring graphic designers and web developers), conversations about legal issues will be much tougher and more expensive. If you need to rethink your approach, rebranding can be quite costly, and you could lose brand equity because you have to shift to a different trademark.
Understanding the spectrum of trademarks and the strengths and weaknesses of each type is crucial for creative entrepreneurs who want to build a valuable, defensible brand. By involving an attorney in the early stages of brand development, you can ensure that your trademark is well-positioned for long-term success.
What Happens If You Infringe on Someone Else’s Trademark?
You also want to consider the potential consequences of unintentional trademark infringement. The risk of infringing on another brand’s trademark is another important reason to seek legal counsel early in the brand development process. Many business owners unknowingly commit trademark infringement, believing that their brand or logo is sufficiently distinct from others in the market. However, infringement occurs when a brand name or logo is similar enough to another that consumers are likely to confuse the two — even if they aren’t identical or offering the same products or services.
For example, if a company named “The Real Chef” produces a web series and live events showcasing chefs across the U.S., and another business wants to create a directory called “Real Chefs,” there is a high likelihood of trademark infringement, despite the small differences in the name and offerings.
Consulting with an attorney before investing in a brand can help you identify potential infringement issues before you get financially invested. A qualified attorney can help you figure out whether a name you’ve chosen is too close to a trademark that already exists.
Your legal team can also help you examine other business implications when deciding on your brand name. For instance, will you be competing for domain names or search engine optimization? Will choosing a trademark that is similar to someone else’s limit your expansion possibilities in the future?
Avoid Costly Mistakes With Early Legal Guidance
When you’re developing a new product or service, or launching a new initiative or campaign, it’s vital to involve an attorney early in the process. By doing so, you can avoid potential trademark infringement issues, protect your brand against infringement, and make well-informed business decisions. And even if you’re not prepared to hire an attorney immediately, it’s valuable to establish a relationship so you have a trusted legal advisor when the need arises.
Take the first step by setting up a call with Creative Genius Law. Submit an intake form here, and let us help you build a solid legal foundation for your brand’s growth and long-term success.