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A trademark lawyer can help you protect your business’s valuable intellectual property assets. A trademark is a word, symbol, phrase, or design, such as a logo, that identifies your business’s goods or services and distinguishes them from competitors. The best way to protect your trademark is by registering it with the United States Patent and Trademark Office (USPTO).
While it’s possible to register a trademark on your own, most businesses that go through this process, especially those registering a trademark for the first time, are represented by a trademark attorney. Here, we’ll explain how to find a great trademark lawyer, including some advice on how to get free legal help for a trademark application.
The trademark registration process, especially for a first-time applicant, can be long and confusing. There are many deadlines to follow, and if you make a mistake with your application, the USPTO will not refund your registration fees. For this reason, it’s wise to hire a reputable trademark attorney.
A trademark lawyer can help you navigate the registration process and handle the following:
Should you decide to hire a lawyer to help you with your trademark filing, there are multiple places to find a good trademark attorney.
If you’d like a lawyer to help you with a trademark issue, you’ll need more than an ordinary business lawyer. You’ll need a dedicated trademark or intellectual property attorney, someone with specialized expertise to see your trademark registration or dispute through to a successful completion.
Here are some of the best ways to find a trademark lawyer:
Your fellow small business owners are often the best route to a great lawyer. If another business successfully registered their trademark or dealt with another trademark issue through the help of a trademark lawyer, ask for their contact info and make an appointment.
Don’t necessarily assume they’ll be qualified or willing to help you. For example, if they specialize in a certain industry or if your case is more complicated, the lawyer may decline. But, it’s a good place to start.
Business attorneys are often invited to attend business conferences or to speak at such events. If you attend a talk on IP issues or trademarks, or if you mingle with a trademark lawyer during a meet and greet, get their business card and make an appointment for a consultation later.
If you get accepted into a startup incubator, that’s another avenue to finding a trustworthy attorney. Just keep in mind that the application process for incubators is highly competitive, and tech startups are often preferred.
State and local bar associations often have lawyer referral services where you can find lawyers practicing in specific areas. These include both online directories and phone numbers you can call to get a referral to a trademark lawyer.
These days, lots of legal help is available online. Several online legal services can match you up to a trademark attorney near you, and some will provide legal assistance on trademark issues for a low, fixed price.
Here’s a look at some of the sites that can help:
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Online legal services like these have made it much easier to find affordable legal assistance for virtually every part of running your business, including trademarks. Just be sure to confirm an attorney’s license and check out reviews from past clients before any attorney begins representing you.
The resources above are great if you have a budget for a lawyer or legal services, but you might not be so lucky. Maybe you’re not profitable yet or you’re a brand-new business that’s just trying to get off the ground. Did you know that free legal assistance may be available?
Since registering a trademark is such a complicated process, various organizations provide pro bono assistance for small businesses, entrepreneurs, and freelancers. If you’re in a creative industry, like music or arts, free help is even more widely available.
Many law schools have clinics that focus on intellectual property matters, which can be a great resource for small businesses. Law students enrolled in these clinics can file trademark applications and appear at USPTO proceedings on behalf of small business clients and entrepreneurs who cannot afford expensive legal counsel. The students work under the supervision of a law professor or more experienced attorneys.
Here’s a list of law schools that have IP clinics recognized by the USPTO. Just remember that these are law students who don’t have a lot of experience under their belt. If a student isn’t equipped to handle your case, the law professor or attorney who is overseeing the case will recommend that you secure outside legal representation.
The American Bar Association (ABA) has an online directory for small businesses that are looking for free legal help on trademark issues. Not all states are represented, but the largest states are. The directory lists lawyers and law firms that provide trademark services for free or a low cost. Some of the firms focus primarily on helping musicians and artists. In most cases, individuals and businesses need to fall below a certain income threshold to qualify for the free or low cost help.
The International Trademark Association’s (INTA) Pro Bono Clearinghouse was created to help low-income individuals and nonprofits and charitable organizations with low operating budgets get free legal representation on trademark issues. If you’re able to demonstrate a financial need, the INTA will try to match you up to a lawyer or law firm who is a member of INTA and who can help you free of charge.
Once you use the channels above to make a short list of lawyers, how do you choose which trademark attorney will be the best partner for you and your business? It’s important to choose wisely because getting a trademark can be a long process, taking six months to one year on average, and the work isn’t really over even after you secure the trademark. You or your lawyer will also want to keep monitoring the trademark afterward to make sure no one else is using it without your permission.
When evaluating a trademark lawyer, ask the following six questions:
Trademark attorneys can charge around $1,000-$2,000 for the full trademark application process and an additional $400-$500 if any delays or disputes arise in your case. In addition to the fees charged by the trademark lawyer, you’ll have to pay several hundred dollars in government filing fees.
The fee will depend on the following factors:
Make sure that your fee arrangement is in writing and that you understand exactly what you’ll be expected to pay. And remember, you may be able to save money by finding pro bono legal help or by using fixed-fee online legal services like Rocket Lawyer or LegalZoom, both options mentioned above.
Industry-level knowledge can be helpful when registering a new trademark. The test for trademark eligibility is whether there’s a “likelihood of confusion” between your mark and another mark. If there’s a similar logo or mark being used by one of your competitors, the likelihood of confusion is high. In other words, two restaurants using the same trademark is likely to cause more confusion than a restaurant and a doctor’s office using the same mark. A lawyer who has deep knowledge of your industry is therefore better than one who is unfamiliar with the type of work you do.
In addition, if you’re in a creative business, like music, art, or design, there may be different rules about when something qualifies as a unique trademark. For example, there are stricter rules for registering the name of a musical band or a song lyric than registering a simple service or merchandise trademark.
You should ask this question of any attorney who is representing you for any reason. However, a trademark application can be particularly complicated and sets in motion several deadlines and requirements that you need to comply with to successfully register your trademark.
Don’t look for a general business lawyer—look for a trademark lawyer who has experience in:
Out of all parts of the trademark registration process, the part that could “make or break” your case is the trademark search. This is when the lawyer searches for other trademarks that could be found confusingly similar to yours. It’s a common reason that trademark applications are rejected.
Most trademark attorneys search the government database, but there are other places to search for trademarks, including the app store, websites, and “common law” databases for trademarks. Common law trademarks are trademarks that haven’t been registered with the government, but they may still enjoy legal protection simply because they are actively being used to identify goods and services.
A good attorney will also check state-level and local-level trademark databases. Make sure your trademark attorney knows how to conduct a comprehensive trademark search at the outset of the registration process.
When you hire an attorney to work on your case, you also essentially hire the rest of their team. This includes law clerks, paralegals, legal secretaries, and business partners, all of whom may work on your case. Some attorneys delegate a significant chunk of work to clerks or paralegals, and this can cause errors on your trademark application. Ask what work will be delegated, whether the attorney independently reviews all work completed by paralegals and secretaries, and what the attorney will handle on their own.
Make sure the attorney will keep you up to date about the progress of your case and that they know your preferred method of communication—phone or email. Usually, the case will begin with an initial in-person consultation, but that’s the only time you may see the attorney (especially if your case is pretty straightforward). But if you do need to contact the lawyer, make sure you know how to reach them on short notice.