Branding is a critical aspect of most businesses. Protecting your brand through proper trademark protection is an important strategy. If you become involved in a trademark dispute, are having trouble getting your mark registered, or simply want some advice from a professional about a trademark issue, you will want to consult a trademark lawyer. Not every attorney is capable of handling trademark issues, however. How can you find an attorney with the right experience?
Trademark law is a specialty. Even within trademark law, there are lawyers who focus on trademark registration (through the U.S. Patent and Trademark Office) and lawyers who focus on litigation. In litigation, you are generally fighting against another company that claims rights over "your" trademark. Before you hire an attorney, you should determine what sort of trademark services you need.
Trademark lawyers are relatively easy to find. They advertise online, as well as in the yellow pages and legal journals. They may call themselves "intellectual property lawyers," although this can be misleading. Because each field of intellectual property is increasingly becoming a complicated legal world all to itself, most intellectual property law specialists tend to be very knowledgeable in only a narrow area. For instance, it is common for patent lawyers to be far more knowledgeable in that area than in trademark law, even though both patents and trademarks involve practice before the PTO. Similarly, some lawyers specialize in trademarks and do little or no patent work. The point of knowing this, of course, is that you want a trademark lawyer who really knows trademarks, not someone willing to brush up on trademarks at your expense. When you call on the intellectual property specialist, ask these questions:
The first inquiry will help you find a true specialist in this area, while the second will help you find a lawyer who is curious enough about the subject of trademarks to join these associations of trademark specialists.
In addition to satisfying yourself that a lawyer is competent, you want to find someone who is reasonably congenial to work with. You may find that some lawyers may look down on laypersons when it comes to the lawyer’s area of expertise. Fortunately, however, some lawyers are willing to respect their clients’ knowledge and know how to work with it rather than against it. It is this type of lawyer you should be looking for.
You can find a lawyer who isn’t intimidated by a competent client if you:
If you get a whiff of, “Don’t tell me what you need, I’m the lawyer,” go on to the next name on the list. If the response appears to respect your self-help efforts and admits the possibility that you are a competent human being, make an appointment.
In looking for a professional to represent you, the person's character and personality are paramount. Regardless of how brilliant the attorney might be, personal fit matters. The best analytical trademark lawyer in the world can bring you to financial and emotional ruin if he or she lacks the ability to understand your needs and to represent you with your best interests in mind.
Some lawyers may attempt to run up lots of billable hours over a period of time, which is unethical, and is also the opposite of your interest in arriving at a fast, cost-efficient, and reasonably livable resolution of the trademark problem. It is essential that you and your lawyer agree up front about what the lawyer is to do and the amount of control you are to have over the lawyer’s activities.
Trademark litigation can be expensive. In recent years, many lawyers have discovered that there often are better ways to resolve disputes than the old “haul ’em into court” technique.
The two most common of these alternative approaches are arbitration and mediation. Both of these processes involve a third-party neutral who is not a judge. In arbitration, the arbitrator makes a binding decision, usually more quickly than a court. In mediation, the mediator helps the parties come to a negotiated agreement.
When you search for an attorney, make sure that the attorney is fully up to speed on these private, fast, inexpensive, and often successful techniques and is willing to help you explore them as a potential way to solve your problem. Often, trademarks are not worth the cost of extended courtroom litigation, or the prospect of lengthy appeals.
A number of websites offer listings for domestic and international trademark lawyers, including: