Early stage founders, take your (trade)mark.
Every savvy business owner knows it is better to work smarter, rather than harder. This theory applies to handling intellectual property, such as trademarks. Inexperienced business owners think they can save time and money in early stages by neglecting, ignoring, or otherwise putting off IP issues so that they can work hard on “more important things” like building the company and brand. The opposite is true. Building a valuable company is a marathon, not a sprint. Ignoring trademark laws from the beginning can result in working very hard to build something really awesome really fast, that gets completely ruined the next year. That’s not smart.
Intellectual property, including trademarks, are very valuable business assets, so it is vital to learn (1) how to secure the most protection under the law, (2) ensure you can legally protect the unique attributes of your brand from competitors, and (3) make sure the high costs associated with trademark litigation do not end up shutting down your business. The journey toward effectively protecting your brand assets begins with understanding the harms that come from neglecting and ignoring your IP.
For inspiration, view Forbes 10 most valuable trademarks in the U.S.
I've got an early stage company...
WHY THE BLEEP SHOULD I CARE ABOUT TRADEMARKS?
Brands are critical to success from day one. For more information about building a solid personal brand, read “Branding 101: Putting the U in Superstar.” A company’s brand represents it’s public image and reputation, and trademarks are a legal tool to protect unique aspects of that brand. Trademarks fall under a particular brand umbrella, but ALL aspects of the brand are not necessarily trademarks. Trademarks provide legal protection to help a company safely and freely communicate, both in person and on the internet. The brand and accompanying IP are valuable assets that appreciate in value over time, as the business grows. A particular trademark can become so valuable that it results in an offer by a huge corporation to pay to acquire the related business.
For examples of awesome Bay Area brands, check out:
(1) Ignoring IP is like...
THROWING MONEY DOWN THE DRAIN
Since a company’s brand and IP assets are absolutely vital to success, it makes sense to learn how to make IP related business decisions that will gain the most protection under the law. For example, under trademark law, the more distinct a company name, the more protection it is afforded. Unfortunately, many business owners are completely unaware of the value of these considerations, and do not even contemplate distinctiveness when establishing their company brand elements. This lack of diligence is equivalent to throwing money straight down the drain the first day the company is launched.
(2) Ignoring IP is like...
LEAVING THE DOOR OPEN FOR COMPETITORS TO DEMOLISH YOUR BRAND
Conducting “due diligence” before committing to building a brand is a smart and worthwhile pursuit requiring minimal time and money. A business owner should make sure brand elements are available for use, so they can formally register with the USPTO. This will put the public on notice and ensure the company’s ability to protect the company’s time and economic investment in building that particular brand without limitation. Failure to conduct an appropriate search may eventually result in denial of a trademark registration, which can limit the company’s right to prevent competitors from creating a “knock off,” lesser quality version of the product. Smart business owners will want to prevent others from infringing upon their trademarks, in order to uphold the brand’s good reputation. After all, once the public loses faith, it is very difficult to instill that trust again. For more information on conducting a trademark search, visit the USPTO trademark database.
(3) Ignoring IP is like...
INVITING LITIGATION TO CLOSE YOUR COMPANY
A prudent business owner will want to make sure their brand will not infringe on another company’s prior rights. The last thing any company wants is to receive a threatening “cease and desist” letter from another brand owner’s attorney because they were trying to save time and money by ignoring IP at early stages. Spending a minimal amount of time and money prior to building the brand to investigate whether such brand is still available will help avoid the exceedingly high costs of a dispute or litigation, which can be devastating to a carelessly infringing business owner. Not only can a lawsuit arise, the infringing party can also be forced to permanently stop using the mark, which means the time and economic investment in building that brand was completed wasted, and they will need to start over at the beginning with a new brand. If infringement is found, the Plaintiff can also collect, for example, the infringer’s profits, actual damages caused by the fact that consumers are confused or deceived, other lost profits, injury to goodwill, and expenses due to trying to correct the issue with consumers. Each case will be evaluated on it’s own facts, circumstances, and local laws, and costs of litigation can easily shut down a new business. For more information on trademarks, visit IP Law Watchdog, IP Newsflash, and TrademarkNow blog.
The author, Harmony Oswald, Esq., is a U.S. Army Veteran and a Member of the CA Bar. In 2018 and 2019, she was selected by the American Academy of Attorneys as a “40 Under 40” CA Business Attorney. She is the Founder and CEO of Legalucy, a legal tech company empowering business owners with the information necessary to spot issues, take action, and stay safe with our interactive guide and risk management system. We make legal tasks fast, affordable, and even fun!
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