The Ugly Truth of “DIY Trademarks”

It’s a conversation that I have had far too many times when beginning a relationship with a new trademark client. The conversation typically starts with them saying, ““I filed my trademark application myself.” They go on to explain that they did that to save time and money. What they thought would be a simple process turned out to be a headache that ended up costing them more time than it should, and the end result may be a trademark that is indefensible, if they receive a trademark registration at all.

The initial process seems straightforward and is tempting to try, but as experienced trademark attorneys, we’re here to tell you: it’s not as simple as it seems.  Trademarks are valuable assets that protect a company’s intellectual property and brand, helping establish validity for newer companies and defending against competition as the company grows.  Unfortunately, entrepreneurs often fall to the myth that “I can do this myself” without the expertise of an attorney to guide them through the process. The reasons vary from cost to time, to even hubris, failing to understand the complexities that exist in trademark law. In fact, attempting to file a trademark application on your own can lead to costly mistakes and missed opportunities.  I want to highlight two main myths and explain the ugly truth that each carries with it.

Myth #1: I can do this myself because it’s not that hard

• A quick web search for “trademark filing services” will bring up a litany of tools and services that offer a turnkey solution to your legal trademark needs. These solutions, however, rarely address the complexities that truly exist in trademark law. Trademark law is a niche field with its own set of intricacies and nuances. While online resources may provide a basic understanding of the process, they often fail to address the complexities involved in selecting a good mark, conducting a thorough trademark search, evaluating potential conflicts, and navigating the application process effectively. Without proper guidance, entrepreneurs risk overlooking critical details that could jeopardize their trademark’s validity and enforceability. Moreover, a trademark attorney can have an important impact on achieving success. A law review article that analyzed over 5,000,000 federal trademark applications determined that “trademark applicants were 37% more likely to succeed in the first stage of the process and obtain USPTO approval of their marks when represented by counsel.” Deborah R. Gerhardt and Jon P. McClanahan, Do Trademark Lawyers Matter?, 16 Stan. Tech. L. Rev. 583, 607.

Myth #2: I need to do this myself to save money

• It is true that legal fees can often be steep no matter what services you are receiving from a lawyer. But when it comes to trademark law these fees should be seen as an investment in your company’s future, rather than a mere expense. In fact, DIY solutions for trademarks often result in what an entrepreneur is trying to avoid in the first place: costs that jeopardize the company’s future. Often, any cost savings is lost when dealing with an issue down the road that could have been avoided.
  
  One of the gravest dangers of DIY trademark registration is the risk of unintentional infringement. Without proper legal counsel, entrepreneurs may inadvertently choose a trademark that conflicts with existing rights, leading to legal disputes, costly litigation, and damage to their brand’s reputation. Consumer trust and brand loyalty are paramount to a company’s success and receiving legal counsel for your trademark needs helps ensure that your company is able to do this.

DIY Trademarks are a tempting solution to a need many entrepreneurs have, and as a small business we understand the underlying motivators that make them appealing. We know, however, that consulting with an experienced trademark attorney allows entrepreneurs to build a foundation of success, helping the company grow in whatever competitive market they seek to grow in, and avoiding future risks that can damage them.