Lesson: Trademarks with Ed Timberlake

Step #7 Buzz: The social side of trademarks

In starting a business it can be helpful to have the personality of, “I am just going to go my own way, kind of regardless what other people are going to do,” because there are always a million people to say, “That's a bad idea, that's never going to work, you can't do that.” To a certain extent you still have to your own way in order to do anything in life.

One tricky thing to manage sometimes is the fact that the personality type that tends to start a business is sometimes at a disadvantage in coming up in creating good trademark rights or in recognizing how it is that trademarks work, because trademarks are not individual, they are not property in this sense of like, “I am going to build a wall of this space and nobody else can come here.” Trademarks are social, partially social in that the consumers around the world will use them, they are the people you are trying to reach, so it has to be something that will have resonance with consumers.

A fundamental way that people sometimes don't recognize that trademarks are social is that you can't set yourself apart from the other people in your area if you don't know what the other people are doing, so you can't just go your own way and say, “It doesn't matter. I am going to start this business anyway.” You have to then turn and say, “What is everybody else doing? What names is everybody else using, what logos, what sort of styles are other people using?”

Unfortunately, you not only have to look at it, but you have to kind of have a dispassionate view and that’s where contacting a trademark lawyer can be particularly helpful, because a lot of times you have a vested interest. If you have name that you like and the standard sort of comparison is that when people come to you with a name, it’s like they’re deciding it is the name of their child. It is not just like this is an idea for a company, they are like, “This is my baby,” so if they bring something in, you have to say, “That's an ugly baby,” then it’s an unpleasant sort of conversation to have, or, “That baby is never going to get anywhere.” It can not be a very good thing.

If you keep in mind that there is this social element of trademarks and that you have to look around, you have to see what other people are doing, you have to see not just what other registrations there are, but other people in that sphere — these days we call it “that space” — are there other people in that space doing this kind of thing? You have to look at it with the view, not just from your own point of view like, “Oh yeah, that's similar but they are nothing like us,” that may not matter. You often need another set of eyes to look at it and say, “No, they are not really all that close to you, but they are giant, and they’re aggressive, so you’d better not walk right in front of them or they are going to run over you.”

Part of what makes the field fun to me is that you have to have this sort of outward looking view. You can't just be, “Well, let me go look it up in a book.” You’ve got to be aware about what is going on out in the world.