Q: How can I protect my trademark or my “brand?” I have been using a name for my business and website and found that someone else is using the same phrase. I contacted an attorney and was told that it would cost between $3,000 and $5,000 to get a trademark. Is there a less expensive way I can do it myself?
—Letti Pheifer, via e-mail
Trademark and brand are two very different things. One of the functions of a trademark is to protect a brand. Before you begin to protect your business name, I suggest you be sure it’s yours to protect; you may be the one using someone else’s property. Did you check to see that the name you’re using was clear before you took it on? Did you register it with your secretary of state? If yes, then perhaps you do have something to protect, but it’s going to cost you! Either in time or money or both.
The safest and most expensive way to secure your trademark is to use the services of an intellectual property attorney. However, you can file for a trademark on your own. Begin at USPTO.gov and follow the directions there. The first thing you’ll need to do is search the national data base to verify that your mark has not been registered by another party. If not, follow the posted directions to continue with the registration process. Once you have filed, be prepared to wait about six months for the Patent Office to complete its side of things. If you decide to file on your own, perhaps you can find a local attorney who will review your application once your have put it together.
I would also suggest you contact the Volunteer Lawyers for the Arts (VLA). This non-profit is just what its name says. Its website is vlany.org; take a look. You’ll find information about the services provided, and you’ll also find its contact information.
Protecting a trademark and copyright is always tricky and typically expensive. When someone sent an image of one of my teapots to India and miniature copies showed up at a gift show, I consulted an intellectual property attorney. His advice was to move on; the cost of pursuit was not justified in relation to any potential settlement. In my case, an attorney and common sense said, “Move on,” and I did.
Donald Clark is the author of Making a Living in Crafts and was a partner in Ferrin Gallery for 25 years. In addition to writing, he is currently a consultant to artists, a personal property appraiser, and a collection manager. He also continues to create his constructions that have been shown extensively and collected internationally.
This is an excerpt from the April 2011 Just Ask column. To read the entire article, contact us at (800) 331-0038, ext. 124 to buy the issue.