Launching A New Business In Texas
If you’re launching a new business in Texas, first, I want to say congratulations. This is a big decision and step, and one not everyone can handle. This chapter will be especially relevant to you, as it will focus on key considerations in situations you will shortly find yourself in… if you haven’t already.
If you’re like most people — and it’s totally fine if you are — you don’t know the difference between trademarks, copyrights, and patents. Understandably so. These terms are often used interchangeably at worst and in a muddled manner at best. If you’re not in the industry, why would you necessarily know the differences?
For this and other reasons, I’ve prepared a free course (which you can find on my website) that addresses a lot of these foundational issues; once you understand them, you’ll be in a much better position to handle your concerns or realize whether a lawyer is preying on your lack of knowledge. For the purposes of this book, though, I’ll provide a brief overview of trademark law here.
A Brief Introduction To Trademark Law
Typically, each area of intellectual property law is separate, with each type of lawyer holding a different background of study, experience, and focus. Patent law is probably the most niche, and even within this field, lawyers often adopt highly specific focuses based on their particular area of expertise and industry of interest.
In addition to this, most lawyers who practice trademark law do not have the technical background necessary for patent law. In order to file a patent application, an attorney must pass the patent bar exam, and in order to even sit for it, you essentially need a technical background in engineering or another relevant field of science. This is because patents are concerned with inventions, whereas trademarks are concerned with protecting brands, and copyrights are concerned with creative works.
Likewise, within trademark law, most trademark lawyers do not take on patent law cases. Like patent law, trademark law is incredibly niche, so It’s extremely rare for a trademark attorney to handle patents. Meanwhile, trademark lawyers often offer copyright services and vice versa.
Hiring An Attorney
I just said I’m not afraid to tell a client they don’t need my services yet if they don’t. So what I am about to say may seem to cut directly against that… but hear me out.
Partnering with an attorney as early as you can is vital to setting your small business up on good footing. A lot of small business owners I have come across over my career do a simple Google search as they start their business to see if the name they want to use is taken. As helpful as this may seem, it is a bit too simple of an approach to take.
Some people may take things another step and go as far as searching for their business name with a domain hosting company like GoDaddy, but this isn’t much better. Why? Just because a domain name isn’t taken doesn’t mean there’s no trademark associated with that name. The truth is, internet domains have little to no correlation with trademarks. Not only is this search not exhaustive to begin with, but it isn’t searching for the relevant source of data. Alternatively, if you meet with a law firm like my own, they’ll employ software that searches through state filings and news articles on top of what you’d search if you were to do a general internet or social media search.
Another thing many fail to realize is that the name, strictly speaking, is not all that’s in question here. In trademark law, phonetic alternatives and alternative spellings are also a major concern. The software I just mentioned also takes this into consideration. But what exactly does the term “phonetic alternative” mean? Let’s break it down with an example you’ll most likely know — NIKE.
Let’s imagine you wanted to start a business selling clothes — not shoes — and name it NYKY or NIKY. Both of these could be pronounced in various ways, many of which are very similar to how NIKE is pronounced. Because of this, it is likely you would get slapped with a trademark infringement action from NIKE because of a phonetic alternative. The general public may not know that you’re pronouncing it in a way that isn’t easily confused with how NIKE is pronounced, and so may still pronounce it as NIKE is pronounced. And you know what? NIKE would have a valid argument in court.
Of course, it would be nice if this was all you had to worry about, but it isn’t! Since you’re selling clothes (even if you’re not selling shoes), you’d be dealing with overlapping industries. Often, companies that make shoes can sell in the same department stores as apparel.
As it is today, Nike sells apparel/clothing – but even if Nike was just a shoe company that didn’t sell apparel, they would still have an argument against you since shoes are often sold in the same channels of trade as apparel. As you can see, even though shoes and clothing are different classes of goods, they are considered to be overlapping by the U.S. Patent and Trademark Office when they review trademark applications.
There are so many overlapping issues to think about that just don’t occur to most small business owners — and understandably so! If you’ve had no exposure to any of this before, there’s really no need for you to know about it. But this is exactly why seeking out skilled legal counsel early on is so important: because it will steer you clear of a minefield that can consume your business just as it is coming into its own.
This is only the beginning of what a law firm can do for you, though. A legal practice like The Das Law Firm offers a wealth of additional benefits and services that meet your specific needs. Clearance reports, for one, are something I highly encourage you to invest in.
These are significantly cheaper than filing trademark applications. The fact that they’re hundreds of pages long may seem a little intimidating, but what’s great about them is that you can search them so easily. Simply hitting CTRL+F and typing in whatever you need to find saves you precious time. I even use this for phonetic alternatives, digging up how goods and services are phrased, and more.
More than just saving you time, clearance searches help you discover if someone is using your mark. This is vital to know before you file your application. If you hit any hurdles during the application process, you could be out $1500 on lawyer’s fees alone — close to $2,500 once you include filing fees. Why go through this blindly and risk taking on these losses, not knowing what the hurdles might be if you can?
Let me unpack this a little more for you. A beauty company recently hired me. The owner had narrowed the name down to two options. Let’s say one was “Beyond Beauty.” Well, it came back that someone else was using a similar spelling of that same name, and I told her that could be a problem. Before she ordered her packaging and launched and finalized all of her products, she changed her name based on my recommendation to BeyondBeauty — as one word, not two.
Can you imagine if she had not come to me this early on? Had she found out that the name of her business posed a legal risk after ordering packaging and securing her Instagram handle, among other things? While she incurred the cost of hiring me, she very well could have ended up being not only in a weaker position longer term, legally speaking, but spending even more money at the same time on packaging and product twice! All of her marketing materials would have needed to be redone had she taken it upon herself to just apply on her own. Fortunately for her, she made the choice to hire me first.
As we got to know each other, she appreciated my advice so much that she eventually started asking for input on branding decisions. She sent me text messages about the logos she was looking at with her design team, so I helped her choose a font and placed certain aesthetic elements for her. Later, she told me, Wow, I know I hired you just for my trademark, but you really helped with so much more!
I love these kinds of business relationships, seeing the fruit of our collaboration and helping with things like this in general! Being able to assist clients with more than just the legal side of things is the cherry on top of my work. What sets me and my firm apart is truly loving to help get small businesses off the ground and running in these sorts of unique ways, fusing the logical and creative sides of my brain and providing input to their marketing and branding needs. My clients help bring that out in me, and I repay them, if you will, by stepping up all the more and delivering the best service I possibly can.
So, in the end, this point stays true to what I said in the introduction of this book – hiring an honest attorney who won’t sell you services you don’t need doesn’t mean there aren’t clear and abundant benefits to starting a legal partnership early on.
For more information on Launching A New Business In Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (214) 307 9868 today.
