"I’m a Small Business. Why should I worry about intellectual property?"
It’s a question I am asked often, especially because many of my clients are solopreneurs, startups, and small businesses. A common school of thought is if a brand hasn’t reached the level of global success that say, Coca-Cola or BMW has, there is no reason to be worried about intellectual property issues.
That couldn’t be further from the truth.
It may be helpful to think of intellectual property for small businesses as two sides of the same coin. On one side, before we even get to registering or protecting anything, you want to make sure you even have the right to use your name in the first place.
The Clearance Process
This is done through an extensive series of clearance searches, starting with Google on the most basic level, combing through the U.S. Patent and Trademark Office registry, and ending with multiple engines to which only trademark attorneys have subscriptions.
The value in completing the clearance process with an experienced trademark attorney is that you can ensure you are not infringing on another company’s brand before you even begin business. If you think of all the costs involved in starting a venture – expenses such as purchasing domain names, signage, logo design, branding and marketing strategy, and search engine optimization, to name a few – you certainly would not want to go all that distance only to have to re-brand later because another company was already using the same or similar name for its business.
In my own law practice, I have seen clients, for example, who have operated for several years in Georgia never having done a clearance search. Later, they become aware that a company across the country in Portland, Oregon has been in business since 1950.
Guess how they found out?
Certainly not through a basket of cookies at their front door. More like a nasty letter from that company’s law firm demanding that the Georgia business cease and desist its use immediately. Imagine the effect on your marketing materials, web presence, social media handles, and word-of-mouth referrals when you can no longer use the name you worked so hard to establish.
If you think trademark lawyers are costly, a forced re-branding or worse, a lawsuit, is far more expensive.
Protect Your Brand
Let’s say you clear the hurdle of clearance searches and your trademark lawyer has green-lighted the use of your name for the goods and services you want to sell. The other side of the coin is now to step into your role as a brand owner and enforce your brand against other infringers.
There are certain legal duties that come with being the owner of a trademark, not least of which is monitoring it and diligently protecting it. This is where you cross over to the registration process.
By registering your trademark on the federal level, you are now part of the database that future users will search. Your entry as a registrant will appear and constitute notice that you are using the trademark in connection with the specified goods or services. Think of this as the tables having turned – now you will show up in future search results when someone else goes to clear a mark she wants to use.
Another advantage to federal registration is that you are the presumed owner of your trademark and it is up to a challenger to bear the burden of proving that you are not.
An additional way to enforce your brand can be done through watch reports. These are the trademark equivalent of a Google alert on your application or registration. Essentially, your attorney will receive a regular report of any application that appears to conflict with your trademark. That way, you can keep an eye on the application or file an opposition to that new application, which will halt the process from proceeding.
Stay tuned for future posts on what clearance searches involve, the benefits of federal trademark registration, and opposing or cancelling a trademark.