“I own a Small Business. Why do I need to worry about intellectual property?”
I hear this question all of the time from potential clients, especially because so many of my clients are solopreneurs, startups, and small businesses. It seems that a common misconception is that unless a business has reached say, Coca-Cola level, there is absolutely no reason to worry about intellectual property.
This could not be further from the truth.
Sometimes it is helpful to think of intellectual property (and specifically trademarks) as two sides of the same coin. One side is simply making sure that you have the right to use the business name you’ve chosen in the first place!
The Search Process
In order to figure out if a name is available, an extensive series of clearance searches are conducted, starting with Google. A thorough investigation of the U.S. Patent and Trademark Office registry must also be done, and finally, a search is done using programs to which only trademark attorneys have subscriptions.
The value in completing the search process with a trademark attorney is that you can be absolutely sure that you are not infringing on another’s brand before you have even started your business. Considering all of the costs that are involved in starting a business- such as purchasing a domain name, logo design, signage, search engine optimization, branding and marketing strategy, business cards, etc- you definitely do not want to make that investment of time and money only to have to re-brand later because another business was already using the same or similar name for its business.
Since I began practicing trademarks, I have already seen several examples of this very thing happening to local businesses here in Portland, Oregon. Perhaps you’ve even heard of them: Olympia Provisions, Avid Cider, and Little Chickpea, to name a few.
Guess how they found out?
I can tell you it was not through a nice note or a basket of cookies at their front door. It was more likely a nasty letter from a lawyer demanding that these businesses cease and desist their use immediately. Just imagine getting something like that and realizing that you can either try to fight it and spend potentially thousands of dollars or that you will need to rebrand everything you’ve worked so hard to create- web presence, social media handles, marketing materials, and word-of-mouth referrals.
If you think trademark attorneys are costly, a forced re-branding, or worse, a lawsuit, is far more expensive.
Protect Your Brand
Assuming that your clearance search has come back showing no potential for opposition and your attorney has given you a green-light, the opposite side of the coin is now to enforce your brand against other infringers.
There are legal duties that come with owning a trademark, including monitoring it and militantly protecting it. This is the bridge to the registration process.
By registering your trademark on the federal level, you become part of the database that others will search. Think of it this way- when another business owner wants to use a name or logo- they will now be finding you in the search results- the table has turned. This serves as notice to them that you are using your trademark in connection with the specified goods or services.
An additional advantage of a federal registration is that you are presumed to be the owner of your trademark and any challenger now bears the burden of proving that you are not.
To uphold the legal duties that arise with owning a trademark, a popular option is using watch reports. These are essentially the trademark equivalent of a Google alert. Basically, your attorney will receive a regular report of any application that might conflict with your trademark. This way you can track the application or file an opposition to the new application, which serves to halt the process.
All of this serves to reiterate what I stated earlier- protect your business and your brand. Being a solopreneur actually makes it even more essential to get a trademark because chances are you have or will pour most of your own resources into your business. That’s not something to risk simply because you don’t think a trademark is important. Hopefully, I’ve demonstrated just how important one is to your business.