I am talking about Trademarks today.  To cover this topic thoroughly, I am going to break up the episodes into two parts.  Trademarks are an incredible protection to keep others from diluting your brand. I am excited to share this powerful tool with you.

In this episode we will cover:

• What is a Trademark?

• Common Law vs Federal

• Priority Trademarks

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The Legalpreneur Podcast is advertising/marketing material. It is not legal advice. Please consult with your attorney on these topics. Copyright Legalpreneur Inc 2022

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Episode 248: A Deep Dive Into Trademarks (Part 1) Transcript

Andrea: [00:00:04] Welcome to the Legalpreneur podcast. I’m your host, Andrea Sager, founder and CEO of Legalpreneur Inc. As a serial entrepreneur and someone that works exclusively with small business owners legally protecting their business, I’m dedicated to covering common legal issues faced by business owners, providing you with the business knowledge you need to catapult your business’s growth and showing you just how some of the world’s most elite entrepreneurs have handled these legal and business issues themselves. In true attorney fashion, the information in this episode is not legal advice. This is for informational purposes only, and you should always consult with your attorney before implementing any of the information in the show.

Andrea: [00:00:47] Welcome back. I am really excited to talk about trademarks. You all know that this is my absolute favorite topic because it can do so much for your business. And last week on the legal episode, I said, Next week is going to be trademarks, copyrights. But. It’s actually going to be this week and next week are going to be all about trademarks because there’s just so much to talk about. And I want to make sure I lay it all out here. So this is going to be part one of our deep dive into trademarks. But before we get into it, make sure that you go and get in the Legalpreneur membership. There’s just less than 30 days left to get in at the discounted price of $1999 for the year. That’s less than 2000. To have an attorney in your corner for the entire year as we’re heading into 2023. It is time to begin treating your business like a business. I don’t care if it’s a side hustle. You’re just getting ready to launch your business. If you are building buzz, if you are entering into contracts, getting ready to launch your business, you need an attorney because you should already be ensuring that your business is properly, legally set up. And what goes with that trademarks. So make sure that you get your own attorney to make sure you are covered from top to bottom. The link is in the show notes If you want to get the membership. So get it and we will see it inside.

Andrea: [00:02:20] Trademarks, what we’re going to cover this first week. And there’s gosh, there’s so much. I was like planning the content and I was like, Oh my gosh, I could talk literally all day long about trademarks because there’s so much. But what I’m going to do is talk about. A little bit more about what it is, what they are, what it is, what they are. Common law versus federal and then priority. I think that will cover this first week. And then next week I’m going to cover actually filing the application and then trademark infringement. I might do some infringement stuff this week depending on how long this goes, but if not, we’ll cover it next week. But I know filing the application, going through all of that and covering office actions, all those things will take an entire episode. So let’s do this OC a trademark. We cover this last week. What exactly is it? It is anything that identifies your brand, brand name, logo, slogan, product, name, podcast, name. And as you’re listening to these episodes, start identifying in your own head. Write it down what you think you have that can be protected. Because if you already have things, multiple things that can be protected, what are you waiting for? You should not wait until you are this much bigger brand to protect what you have. I told the story last week about my client who has a small boutique and made 25,000 because she got the trademark registration from the beginning.

Andrea: [00:03:46] 25,000. Like as a small business, that is huge. So when you protect yourself from the beginning, these are the things that can happen. Magic can happen. So make a list. Write down all the things that you currently have in your business that have a unique name that you think might be able to be protected with a trademark and then go and file those. You can either DIY, you can hire an attorney, you can go through a DIY trademark course. So many options to get it done. But anyways, that’s what a trademark is. Once you have the registration, the federal registration, you are able to enforce it against others from diluting your brand. And essentially this is stopping others from using a similar name, selling similar goods or services. It doesn’t have to be just the same exact name. That’s trademark infringement. It’s anything similar enough. And even if you have a personal brand where you’re using your legal name, absolutely, you should have a federal trademark registration. Think about designers, fashion designers. Kate Spade. May she rest in peace. Michael Kors, Calvin Klein, Rebecca MINKOFF, All of these designers is their legal name. They have a federal trademark on all of those things. Even if you think I’m just a small brand. Get that out of your head. You really have to change your mindset and realize once you start treating it like a business. You’re going to really have a business you may view like, Oh, it’s just this little side hustle.

Andrea: [00:05:21] No, if you want to be a real business owner, you need to treat it like a real business. So it’s time to start putting these protections in place. Common law versus federal registration. If you don’t have a federal registration, you have a common law. You possibly have a common law trademark. A common law trademark is what you have before a registration. And it is only enforceable regionally, which means within your geographical area. What area? I don’t know. It depends where you are. If you’re in Texas and you are in Houston, you probably don’t have common law rights in El Paso unless you have a location in El Paso. But if you just have a local brick and mortar store in Houston, probably don’t have rights in El Paso. However, let’s pull what’s a small state of Delaware. I don’t know why I’m thinking of Delaware. If you are in Delaware, it’s a super small state or a Rhode Island super small state. Maybe you do have rights throughout the whole state if you have a common law trademark. I can’t say like, hey, this is what it means. Common law. That’s how far it goes. It’s on a case by case basis. And it really just there’s a lot of factors that it depends on. And on top of that, with common law trademarks, this is not something you want to depend on. You don’t want to rely on it.

Andrea: [00:06:36] If you have a common law trademark, you still want to try and get a registration. You ideally want a federal registration in order to be eligible for federal protection, which will give you protection throughout the United States. You have to be doing business in more than one state. So if you have a local brick and mortar store, you’re actually not eligible for federal protection unless you’re doing something online and which causes you to get mass distribution. So if you have a podcast, yes, federal registration, but if you have like a local clothing boutique, you only have that one location. You don’t sell online, you’re not eligible for a federal registration. You are eligible for a state registration, which if that’s all you can get, then go get that. But at the end of the day, federal is going to trump state registration all day long. So if you’re eligible for federal, go get that federal registration again. Next week, I will go into detail about how to go through the application for trademarks. Now. When you get the federal registration, the power you have is incredible. So if you a lot of times and really ten plus years ago, this was really true when people would say your trademark registration is only as valuable as the money that you have to enforce it. Absolutely. That’s true, because you normally would just have to sue in court. To enforce your trademark. If someone if you sent a cease and desist letter and they ignored you.

Andrea: [00:08:03] But now with the Internet, it is so much easier to enforce your trademark. And that’s why it’s so much more important to have one. So the client the story that I told you last week about my client that. Found somebody using the similar name. She got the $25,000 check. Initially, she didn’t reach out to the other brand. I didn’t reach out to the other brand. All we did was send a takedown notice to the website where they were hosted. That meant that we just reached out to the website, submitted the information to get their store removed online. It’s not even a cease and desist letter. And you can Google this. You can Google like Instagram trademark takedown. You can see their reporting form. They just ask for business information, confirm that you have a federal trademark registration and they remove the page. It’s as simple as that. And. This may have been a completely different situation had we not submitted that trademark takedown because we submitted that takedown. That company sales completely halted. Stopped. Now, if we were to send a cease and desist letter to their attorney, they would have been trying to negotiate this or that, and they may have just ignored us, try to call our bluff and blah, blah, blah, blah, blah. But because they literally halted their sales, there were multi million dollar company. They were losing thousands and thousands and thousands of dollars every single day by having their shop removed.

Andrea: [00:09:37] Because of that. We were able to get a $25,000 check. And I honestly don’t know if that would have been the case, if we would have just initially sent a cease and desist letter. So this is the power that a federal trademark registration has. I don’t. I don’t want you to keep this thought in your head, like, Oh, I’m too small. I don’t want. I’m bigger. And no, do it now. Like, why? Why are you going to wait? Like, if you’re if you’re the one testing the water, you’re like, Oh, I’m just testing the water. I’m trying to see if this is going to work. No, go all in. Make 20, 23 the year that you finally go all in. You really treat it like a business. Because I can’t tell you how many times clients have come to me. They are like, You know what? I’m just going to legally protect my business and start doing this the right way. And guess what? Before you know it. They have a real business and they’re making a lot more money. This was really quick. Run down into a little bit more about trademarks. Next week I’m going to go in a little more detail about the application and I’m going to talk about priority. I want to cover that next week. Stay tuned because it’s going to be a really, really good, juicy episode. All right. Now have a good one. See you next time.

Andrea: [00:10:52] Here at Legalpreneur, we’re committed to providing a supportive legal community for all business owners. I know how scary the legal stuff can be. If you found this information helpful, I would be so grateful if you could share it with the fellow business owner. And quite frankly, it doesn’t cost anything to rate, review or subscribe to the show. Your support helps me reach more listeners, which allows me to support more business owners in their entrepreneurial journey. Have any questions or comments about the show? Feel free to drop me a line on Instagram. I promise. I read all of the messages and comments and if you want to be a guest on the show or know someone that would make a great guest, simply fill out our application form and a team member will reach out if we think it’s a good fit. I’ll see you in the next episode.