By Amber Sheppard, Esq. | Legally reviewed by Amber Sheppard, Esq. | Last reviewed December 01, 2023
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Creative entrepreneurs such as yourself often own their own small businesses. You've spent a lot of time and effort on branding your startup and your products. You want to protect it and know that to do that, you need to educate yourself on business law and trademark law. More than that, you will need to find a licensed attorney to explain the step-by-step trademark registration process.
In a world of lawyers seemingly on every street corner, how do you find the one that is the right fit for your small business? Let's dive into what considerations you need to consider when searching for legal advice and legal protection for your small business.
Before jumping into a lawyer search, let's make sure you understand some intellectual property basics. Your budget is precious, so there's no reason to needlessly waste your resources if you don't have to.
Trademarks are intellectual property that gives you legal protection for specific words, symbols, taglines, or names used in connection with a company's goods or services (service mark). The word trademark is generally used to describe both trademarks and service marks. A trademark is beneficial because it allows your business to distinguish the goods or services you provide from competitors.
Common law rights exist for a trademark when it is created and used in commerce. At that point, trademark rights attach to the creator. The trademark owner has the exclusive right to use the mark and prevent others from using a mark that may confuse the public. To signify that a particular mark is under trademark protection, the business can use "TM" for trademarks or "SM" for service marks. Registration with the federal government allows a trademark to use the symbol "®."
Registration with the federal government through the United States Patent and Trademark Office is not required. Still, it provides much more protection for a small business or brand name. You have to pay a filing fee, but it allows you to assert stronger property rights to the mark. It also allows you to do the following that you couldn't do with just common law rights:
If you are thinking about federal trademark registration or a service mark with the USPTO, then a trademark attorney can guide you through every step of the process.
A trademark attorney will research existing marks in the trademark database to let you know if you can trademark your mark.
A trademark application with the U.S. Patent and Trademark Office is complex. A lawyer can help provide more than just what to do for informational purposes. They can handle the trademark filings for you. An application must include:
If someone uses your registered trademark without permission or tries to use a name or logo similar to yours, your lawyer can prepare and file a lawsuit. If you are on either side of a registered trademark infringement case, your trademark attorney will defend you. An attorney can:
Your attorney is essential to the success of any small business owner. Finding one does not have to be complicated. Here are some things you need to consider when looking for who will protect your business name and business interests:
Before meeting, your potential lawyer's office should ask for the names of your small business members or if you have operated under another name, known as a DBA or "Doing Business As." If the lawyer has represented anyone whose interests don't align with yours in your matter, they cannot represent you. For example, if they previously represented someone who is using your trademark now, they may know legal information from representing that other person, which would be a conflict of interest.
Make sure the lawyer you want to use is licensed to practice law. You can do this by checking their state bar association's website and searching for their name. See where they went to law school. Most lawyers list their education on their website, but you can ask them too.
Law firm websites may list some of their current or past clients, with their permission. You can quickly check references by reading testimonials online through Google, Facebook, and Yelp.
Lawyers can't practice every area of law. They tend to work in a section of law they really enjoy and work on that. Trademark law and intellectual property law are no different. Your current small business lawyer may not handle trademarks, but they could know who does. Ask lawyers in your circle or companies around town if they have any referrals for you.
If you are a larger company or a trademark owner with a lot of intellectual property, you may want a bigger law firm with a large staff. The availability of resources available to the law firm may benefit your bigger business.
If you are a smaller company or prefer one-on-one interaction with your lawyer, then a solo attorney or boutique law firm may suit you best. You may get a quicker turnaround on services with a larger firm, but you also may pay more than with a smaller firm. The smaller firm may take longer, but you may pay less.
You should ask how long the lawyer has worked with trademarks and if they have ever filed applications. Depending on the difficulty of your registered trademark or potential mark, you may want a lawyer with decades of experience. If your mark is a simple company name, that may not be as important to you.
Of course, knowing how much your attorney charges for their services should be at the top of your list. Do they charge hourly, or do they charge a flat rate? How much do they charge? Is this amount within your operating budget, or do you need to save up for it?
Liking your lawyer is essential. No matter how smart they are, you need to get along with them.
If you're interested in getting legal help with a trademark, whether it's to find out if your ideas qualify for trademark protection or if you would like to learn more about registering a trademark, you should contact an experienced trademark attorney in your area.
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