Lesson: Trademarks with Ed Timberlake

Step #10 Expert Consult: How to move forward

One of the great things about trademark law is you can find out so much about it for free. And I think as much as I would like to talk with everybody at the very beginning of the thought process, a lot of people don't call a lawyer at the beginning. I would say that it would be, particularly in trademarks, probably in the rest of life as well, it's a good idea if you talk to a lawyer early. A cheap conversation with a lawyer very early on, can set you off in the right direction. And these days there are a lot of solo lawyers, a lot of smaller entities that you can talk to where it's not all that expensive.

But the great thing is that there's so much great information available online. The tricky thing is that there's so much available online that it's very hard to wade through, but Google is your friend. I mean, really, if you come up with something and you think, "Well, this is the coolest thing ever. Nobody's ever thought of this before," and you Google it, you find out 150 people have done that, I think that's a good part. Because sometimes that's the end of the line. Sometimes you say, "Oh, well I never would have known about them but now I'm not going to go forward."

Other times, I mean that's not necessarily the end of the story, if you Google something and find there's anybody else using that name. A big part of what lawyers can do is give the advice about, of those 150 hits, only 15 are relevant to where you are and 10 of those aren't going to be a problem. And so identifying out of those thousands of hits, identifying these are the ones that you really sort of need to look into as to whether that's going to be a problem or not. But yeah, I would just Google.

The patent and trademark office, the USPTO.gov has a great website. I hear from people who didn't used to work there that it's kind of a baffling site and that there's just a gigantic amount of information and it can be a little hard to navigate. I'm sympathetic to that fact. But it's nice that at least in this area, there's not, the bulk of the information that's going to be meaningful at first is not locked behind a pay wall or on somebody's closed off library. You can find out a lot of what you need to know.

I think one thing in the process that's good to know also is that instead of just sort of pegging it as "Oh, a trademark is not just a trademark but it's a registration and registration is just that one thing." I think it's just recognizing how integrated into all of what you're doing, I mean it's kind of there as the core identity. So thinking early about, what you want your identity to be and then doing frankly, just some market research. Who else is out there for what we're doing? What are the styles? What's kind of the fashion for people like that to name themselves, and what kinds of things are already happening? I think that's good from a business standpoint, but I also think it will be helpful in knowing how to differentiate yourself. You can't wear a different dress from everybody at the prom until you know what they're wearing, and so I think it's good to do a little research along those lines.

One thing I wish that everybody knew about trademarks is just that they're just the coolest things ever. I mean they're very interesting in their own right. And the way there's all this sort of interesting legal aspects, but it's also got a very practical basis. I like to tell people it's a little bit like where art comes together with commerce, in that art without any sort of commercial angle can get very far field, and sort of abstract. And that's great, and I love that, but with a bit of grounding in the everyday requirements of commerce makes for a fascinating interaction of things.

I think that it would be helpful if people didn't think of them as, now, of course the irony is I'm a lawyer sitting here saying this, but I wish people didn't think of them so much as just a legal thing, as just this thing like, "Oh well, that's just the area for the lawyer to take care of that." It's really key, it's integral to what it is that you're doing. It's fundamental and it can determine some things, how far your business can go. How much your business can expand with that particular name.

I don't want to make it sound too daunting, like, "Oh well, it's an impossible task so you'll never get it right," but I think that because it's an impossible task, you from the very beginning, almost before you even know what your business is going to be. If you're thinking about the business, just keep a notebook. Just start a list someplace of, that's an interesting name. That's an interesting word. So that maybe you end up with 1,000 options of, "Hey, you know, now I've decided I'm going to make socks. Handmade socks. And I've got 1,000 options to look through for this." I see a lot of people who, by considering it, like, "Oh no. I got my tax guy who will tell me about taxes and I've got the zoning person who can tell me about zoning." And so therefore you don't have to think about taxes and zoning because it's kind of over there.

Trademarks are not like that. You can't just say, "Oh, I've got a trademark guy who'll do it." I mean, by the time you come to me, often times by the time people come to me they'll say, "Well, we already have this trademark. Let's see if we can get through the process of registration." If it's already something that's great and you've done the hard work, then the registration process is often not that difficult. There can be a couple of twists and turns, but it's not really the hard part. The hard part is writing the hit song. Is coming up with something that is going to be legally recognized, but also is going to fit with where your business is.