You can lose big including your business and investment if you fail to learn the basics of trademark law. It is not an esoteric subject but the life and blood of your operation! Let me explain.
As a Texas Trademark Attorney for decades, I have seen heart breaking situations where clients are forced to close down their businesses after years of hard work. A typical situation is the fate of a restaurant owner in Austin who operated a successful family diner with a great following and reviews. Although he designed his menu with care and hired a superb staff, he failed to check the trademark availability of his company name.
The above client paid a visit to my Austin law office around Christmas with a letter in hand from a prominent NY law firm. Turned out this was a demand on behalf of a large restaurant which had trademarked the exact name at various locations in New York. The law firm demanded that the Texas restaurant immediately cease the use of its trade name, shut down operations, and literally destroy any signage which displayed its branding.
The client was obviously disturbed and anxiously awaiting confirmation from me that this could not be true. How could he possibly take down his sign, advertising, and even shred his menus. Unfortunately, after a quick search of the trademark records, I advised him that his worst nightmare had come to pass. There was no defense against the trademark infringement claim and the best-case scenario was to work out a settlement, if possible. That seemed very unlikely, however.
My new client learned a critical lesson the hard way about the importance of trademarks. Here are a few pointers:
- The only way to protect your trade name is to register for a federal trademark before the United States Patent and Trademark Office (USPTO). Once registered, you have the exclusive right to use the trademark at your business location and anywhere in the United States.
- Before using a company name for a restaurant or any business, have a Texas Trademark Attorney perform a search to see if the name is available. It is not recommended that you do this on your own as the legal issues can be complex. Leave it to a professional and do not cut corners on the very survival of your business.
- Trademarks are available only for selected categories, for example – restaurants. Other categories are not available unless an additional fee is paid.
- To obtain a trademark, your Texas Trademark Attorney will file an application with the USPTO and interact with government attorney to get it examined and approved. So long as you file before another person or company, you will be first in time regardless of the delay in getting the trademark approved.
- Once approved and registered you can use this mark next to your name: ®.
The huge takeaway is that once your mark is registered, you can go about your business without fear of begin shut down. Critically, the trademark registration will increase the value of your business by protecting your brand and its Intellectual Property.
In the event you decide to sell your business in the future, the lack of a trademark will detrimentally lower its fair market value regardless of financial performance. A sophisticated purchaser will discount the purchase price based on the risk of a trademark infringement lawsuit.
On the flip side, you can force other businesses to close their doors if they violate or infringe on your registered trademark.
Whether you operate a restaurant or any business, a trademark is recommended. Give us a call for a complimentary consultation and we will answer all of your questions with specificity.
