Amongst those new to the trademark world, a familiar theme emerges. Queries are raised about the basics of trademarks, the necessity of registration and the value (or otherwise) of consulting with a trademark attorney. Client education is a consistent hot topic amongst lawyers in almost every practice area but none are required to ‘prove’ their value to quite the same extent or with such dreary regularity as trademark attorneys.
I have a theory about this. In most practice areas of law, the requirements for a lawyer exist in a distinctly separate fashion to everyday life; contracts, wills, property purchase and criminal defence are all distinct events outside of the ordinary experience and which generally clearly require the services of a lawyer, regardless of your level of enthusiasm for such.
Trademarks and branding, however, are an intrinsic part of life. They are in our homes, shops, social media, pictures, advertising, sports sponsorships - you can’t get away from them without replicating some sort of ‘Castaway’ scenario. Every business owner (and many employees too) are involved in branding their business and products. Past that, involvement in naming and branding go hand in hand with creatives too. Authors, musicians, artists, designers and architects all brush up against intellectual property challenges, including trademarks.
Familiarity breeds, if not contempt in this scenario, then certainly a false sense of over-confidence in the unwary or less experienced. While the core trademark issues seem relatively straightforward, there is a good reason that it exists as an entirely separate practice area of law rather than a mere addendum to another practice area. It is an enormously complex, multi-jurisdictional practice that in many cases crosses over with other legal areas. The challenges change in accordance with the industry, product range and marketplace in which you operate.
I think it is a fair rule of thumb to suggest that if your goal is to build and maintain a successful and profitable venture and you are asking if you really need a trademark attorney - then you probably need a trademark attorney!
However, there is a significant difference between ‘a’ trademark attorney and ‘a great’ trademark attorney. What constitutes ‘great’ in this context is a trademark attorney who is the right fit for your business model and stage, your experience and knowledge, your personality (and that of your business or products), the industry that you operate in and where you want to go as a business.
A great trademark attorney will become an invaluable business partner for your fledgling enterprise and beyond. If you are a small two-man tech company and you choose a trademark attorney that generally only represents big players in the food industry, for example, is this the best fit possible for your business? Of course, they can advise on your trademark needs equally as well as any other attorney and this might be a perfect fit for you.
However, if you choose a trademark attorney whose practice is specialised for start-ups in the tech space, you stand to gain a lot more than straightforward initial trademark advice. This trademark attorney will have guided many businesses just like yours through the same minefield that you are facing. They will have represented clients who experienced unforeseen technology related intellectual property issues and related business challenges. It is likely that they will quickly become ‘trusted advisors’ and an essential component of your overall business success, if other factors align too.
You can ask yourself some questions to assess some other factors:
Will you need your trademark attorney to spend some time with you (at least in the early stages) so that you can understand the necessary moving parts and be empowered moving forward rather than confused? Or are you happier with brief updates on a ‘need-to-know’ basis?
Do they understand your budgetary constraints? While no trademark attorney can magically make application fees disappear, for example, they may be able to help you strategize to make the most of available budget.
Does your industry have specific challenges related to intellectual property? Do they regularly represent businesses in similar industries?
Does their personality appeal to you? Do you find it easy to understand what they’re explaining to you?
How active do you wish to be in your branding process? Some businesses like to do preliminary trademark searching or even full clearance themselves, for example. Others prefer to leave everything to their attorneys. Yet others are somewhere in the middle. Attorneys differ in their approaches to this so it is key to look at.
Trademark attorneys are, in essence, people too! They have different specific interests, approaches, personalities and communication styles. I would argue that while the money you might invest in creating and protecting your brands is invaluable, spending a little time in finding the trademark attorney that is right for you to support you through that journey is even more so. A great trademark attorney is one that understands your business, communicates in a way that works for you and one whose advice and guidance you trust.