Lessons I've Learned As An Attorney
so that you didn't have to
The holiday season is upon us, which means the end of the year is near. If you’re on the internet, you know that means LLC TikTok/Instagram is pushing the “There are eight days left in the year, sell your house, start a business, and buy a G-Wagon” narrative. While I’m incredibly supportive of your dreams and love serving small businesses, let’s get it right the first time. There are a lot of moving parts when it comes to starting a business, and we'll touch base on what that entails in the new year, but today, I want to chat about registering your trademarks.
If you’d like the TL;DR version of this post, listen to the audio summary below.
This feels like a good word for our legal jargon check-in. What is a Trademark? A Trademark is an identifier of your business. Trademarks can be brand names (Nike), your brand’s logo (Nike’s ✔️mark), or a slogan (“Just Do It”). It’s all about your brand identity and the aspects of that brand that the public associates with your business.
I want to start this off with a personal story. I won’t go into much detail, but this is a good one to learn from. Years ago, a friend and I decided to start a product-based company. Keep in mind that at the time, I was a corporate attorney at a large law firm, but not an Intellectual Property Attorney. But, because I was an attorney, I figured I could easily figure out how to apply for a trademark. I knew enough to know we needed a trademark, but I didn’t know enough to know we needed the assistance of an experienced Trademark attorney.
Fast forward to a few months later, and we were hit with a whopping cease and desist.
If you’re not familiar with what that is, you should check out this post, where I talk about c&ds. The cease and desist stated that we knowingly copied the brand and asked us to rebrand and turn over all profits. That meant getting rid of all of our packaging, marketing materials, and so much more. Yikes! I share the bones of this story for a few reasons. I’m a human. We all make mistakes. This is why, for the most part, I take a non-judgmental approach to my services. It can happen to ANYONE. The other reason is that so many people don’t know the correct ways to register your trademarks or what the process should look like. As we do in every post, let’s dive in!
Here are some Trademark misconceptions I often encounter as an intellectual property attorney.
If you think about the trademark process, most of you probably think the process is fairly straightforward. You come up with a business name or a thing you’d like to trademark, and then you just fill out an application. Sorry to break it to you. It’s much more complicated than that and can become even more complicated if not done correctly. The first thing you think to do is a quick search on the Trademark Office’s database. I mean, hopefully, that’s where you’re searching, and you’re not just relying on Google’s search results page.
Upon searching, you may find that there is an existing company with a name quite similar to the one you came up with. So you’re likely thinking you can just change the spelling or a few letters, you’re in the clear. Wrong. So very wrong. Changing spelling, a few letters, or adding a small differentiating mark will not save you.
Registering Trademarks is not something you should do yourself.
I love a good DIY. So much so that when it comes to copyright applications, I encourage my clients to complete them on their own if they prefer since the process is pretty straightforward. However, I never encourage anyone to go through any process without the assistance of an experienced attorney. The perils of doing this alone are far too great, not to mention the headache, cost, and potential loss of existing investments if you have to start from scratch.
Trademark registration isn’t cheap.
This is my most expensive service but for a very good reason. The process is a very involved and long one. Trademark registration can take anywhere from 12-18 months. The filing fees can be anywhere from $250-$350 per category of your business. For example, if you sell perfume and t-shirts, that’s two categories that don’t overlap. When we add it all up, that’s $250-$350 x two just for the application filing fees. Then, we have attorney fees. Contrary to what some believe, filing fees are not attorney fees. These legal fees are to pay the attorney for the work done throughout the application process, which can last as long as a year and a half. Attorney ™ packages range from $1.5k to $5k, and of course, they include all the different bells and whistles needed to correctly and successfully file a trademark.
All of the costs that I mentioned above are necessary, but I do understand that they may not be affordable for everyone. And even when it is, it’s normal to find that people want to cut corners.
Remember that, in the end, cutting corners usually comes with its own price tag.
If I could give you all sound advice based on what I learned during my failed trademark process and the hundreds of apps I’ve filed since it’d be quite simple. You should ALWAYS ALWAYS seek the help of an experienced professional in the area you need help with. This honestly goes for a lot of things in life and not just the trademark process. Because you wouldn’t demolish your home to build a new one if the only construction experience you’ve ever had is building Legos.
If you take anything from my story, it should be that being an attorney isn’t always enough. Sometimes, even being an intellectual property attorney isn’t enough. Some IP attorneys only work on patents and have never filed Trademark applications. You need to ask questions and work with someone with experience in this area.
As I said at the top, these things can happen to anyone. The lack of information, or even misinformation available online, makes it easy to go about this process incorrectly. So, if you find yourself in a sticky situation like me, speak to an attorney specializing in trademarks ASAP. If you’re in the process of starting out, ask an attorney for the price of performing a comprehensive search before filing. This way, you can at least have the assurance that the most thorough search is being performed and you don’t end up with someone else’s business name, logo, or slogan.
This is a service I offer, and if you want to chat, let me know! Regardless of where you are in your process, I’m here to help. Click HERE to contact me. This will lead you to a form, and once you fill out this form, you’ll get an email with a scheduling link. I’m also debuting a new monthly advisory legal service next month, where you pay a monthly fee to have access to calls with me, document reviews, and so much more. As a subscriber, you get first dibs! Reach out if you want to learn more about the tiers and what’s included.
I hope this was helpful. Registering your Trademarks is very important, and doing it correctly is crucial. Be sure you’re being guided through the process by an experienced attorney. Be sure you’re not just adding ®️ to your IG bio without having filed any paperwork. We didn’t get into that today, but my goodness are people online bold.
If you have any questions, leave it below. And if you liked this post, be sure to share, comment, and tell others to subscribe.
Thanks for rockin’ with me!
Pamela