Law of Business is Dark and Full of Terrors - Trademarks
On Game of Thrones, HBO's popular fantasy series, followers of The Lord of Light, one of the competing religions in the fictional universe, will say "The night is dark and full of terrors." Without proper legal counsel, the law can be as well, especially for aspiring entrepreneurs and business owners. Generally, budding entrepreneurs tend to be optimists and they often underestimate the likelihood of legal perils occurring. This is part of the reason the vast majority of new business fail within a few years.
Do you need a Lawyer?
Underestimating the likelihood of legal problems often leads some to ask themselves if they need a lawyer. If you ask yourself whether you need a lawyer, the answer is almost always 'no', at least in the strict sense. In theory, there is little a lawyer can do for you that you could not do yourself. Of course, that assumes you know what you are doing or you are willing to risk losing everything you worked so hard for building your business. Without legal training and experience, most do not. If they knew what they were doing, they wouldn't be asking the question in the first place. So, for most, the answer to the question is always 'yes' you do need a lawyer, at least to advise on what steps you should take, if any.
However, relatively few heed this advice and get in trouble because they do not seek legal counsel until it is too late when their options are fewer and the costs of resolving the matter is beyond their control. You should have a lawyer to consult with before you have problems just like you should have your doctor perform routine tests before you ever show any symptoms. Your lawyer should be reviewing your business activities to identify risks you may not even know about. An ounce of prevention is worth a pound of cure applies not only to your health, but to your business and its legal matters as well.
Yes, you should seek legal counsel regularly. We all engage in activities that could raise legal issues whether it is operating a business, hiring employees, buying or selling of goods and services, meeting government requirements, making errors of judgment that cause some harm to someone or simply being accused of wrongdoing. Enough legal issues are encountered by any business on a regular basis that you should be in regular contact with your lawyer. If you don't have one, get one.
Should I Hire a Lawyer for Everything?
Whether you should retain an attorney for a particular matter is a different question entirely. Sometimes you feel wronged but you have no legal recourse because the courts do not offer a remedy for the wrong you suffered. There are some cases where you have a legal claim, but the amount in issue makes the idea of hiring an attorney uneconomical. Sometimes you have a case but cannot identify who wronged you. In business where relationships with customers, suppliers, employees and others are often critical to the success of a business, sometimes the risk of severing a relationship outweighs the benefits of pursuing legal action. Even if there is no basis to file a lawsuit, your lawyers can often suggest informal remedies and other alternatives for you. More importantly, they can advise you on how to best avoid similar situations in the future.
As an example, a new business owner may wonder if they need to protect their trademark by registering their logo(s) with the State of Texas or other states or whether they should register it with the federal government or not at all. New businesses often want to preserve cash and that owner may have read on the Internet that there is some debate about whether registering trademarks are worth the cost and effort. In the greater scheme of things, registering your businesses trademarks should not be cost prohibitive for any but smallest of companies.
A lawyer will ask you why you want to register the trademark. It may seem obvious. The business owner has chosen a mark they think is perfect and the mark might even have secondary meaning to the business owner. Often times the company logo is designed long before business operations begin. When business the business actually starts running, the business wants to grow by promoting its trademark and prevent others from using similar marks.
However, unless you have been in business for a while and/or have invested heavily promoting your trademark, the mark is probably not worth that much yet. The Coca-Cola wasn't worth much when it first appeared because no one had heard of it or tasted Coca-Cola. There was little concern with others intentionally infringing upon the Coca-Cola trademark because there was not yet any goodwill associated with the trademark.
From a legal perspective, at the beginning of a business' life, the concern should be less about preventing someone else from infringing upon your trademark than the possibility that your trademark inadvertently infringes upon a similar trademark owned by someone else. If the new business becomes profitable, the owners of the other similar marks will likely seek damages from new business at some point in the future. They may even wait for the new business to grow in order to increase the value of their potential claim. This is a scenario you want to prepared for if you want to reap the benefits of your business' success.
Lawyers Role in Protecting Your Trademark and Avoiding Claims By Others
The process of your attorney reviewing your logo and properly registering that mark will not only help protect your trademark, but help identify other trademarks that could be similar enough to the new business' trademark that there is a concern about potential claims for infringement. Even unsuccessful claims can bankrupt a new business. It is best avoid the possibility as much as possible.
After reviewing the logo and determining the existence of similar marks. The lawyer may advise you to modify or even abandon the logo altogether. Some types of marks such as those that are merely descriptive of a business offer very little protection even if there are no similar marks being used by others. The lawyer can also make suggestions to you on how to create a strong trademark that are more likely to be protected than others. Alternatively, your lawyer could also assist in obtaining the rights to similar existing trademarks and other rights such as internet domain names from their respective owners. Whichever the business chooses, it is important that the business seek legal advice and complete this process before investing heavily in promoting the trademark. Otherwise, its efforts may end up benefiting others and may even cause the new business to fail, or as they say on Games of Thrones, "Winter had come" for your business.