Why Do Humans Make Such Terrible Decisions?

Maybe that title takes you to a place you’d rather forget. Don’t worry; I’m only talking about trademark law. But if you’ve got a moment, please hear me out.

We do, as humans, make astoundingly bad decisions. We entrust our homes to the fly-by-night contractor, because he was first to appear after the devastating hail storm. We enter into high stakes agreements without good contracts, because we don’t want to “scare the other side away.” We cast our votes because of fear. We put off going to the rest room before the plane lands, because we think we can hold it. Terrible decisions! Yet we keep doing these things, over and over.

If you care about trademark protection you’ve already invested time and money into your business – or you’re on the brink of doing so. As business personal property your trademark is as precious as your house, your car, your investments. You vet professionals, meticulously, to design, build and manage those assets. When it comes to your trademarks, though, you seem perfectly comfortable with whoever’s fast and cheap. To save a buck you might even choose “do it yourself” (DIY) lawyering.

Those are terrible decisions.

A. Your trademark is your brand. It represents the goodwill you have established with consumers. Goodwill is what sets you apart from your competitors.

B. There is a critical difference between a “trademark” and a trademark “registration.” (If you can’t articulate the difference, that’s reason #495 why you shouldn’t be doing this yourself.) Mess things up with a cheap or DIY attempt, and you can lose everything. Of course, you won’t know you’ve lost everything until you get challenged — and lose.

C. By “attempt” I refer to making application for registration with the US Trademark Office. This seems pretty easy, which is why so many fall prey to making these terrible decisions (i.e., cheap, fast, DIY). The application form is, in fact, relatively simple. But that form is the last step in a strategic legal process. Imagine writing a dissertation, then having to submit a form to the University in order to receive your actual degree. It’s not about the form. It’s about the work that happens first.

D. When that work hasn’t happened, and you just submit “the form” to the USPTO — you’re playing Russian Roulette with your business. Exaggeration? No. We’re not just talking about losing one particular trademark. If your errors result in litigation, the costs can quickly put you out of business and/or jeopardize your personal assets.

Please revisit point “C” above. There are companies (“trademark mills”) that prey upon the common misconception that it’s all about “the form.” They charge a nominal fee, do nominal work, and you end up with a USPTO filing receipt. If there’s any kind of refusal during prosecution of the application, you’re on your own. Sometimes you’ll actually get a registration, but you won’t know how or whether the registration is flawed until you’re in a dispute and you need to rely on it. (That’s not the optimal time to learn there’s a problem.) There are non-trademark lawyers who make these same mistakes, promising “quick and cheap” for their clients because they figure it’s all about “the form.” Similar problems ensue.

Of course, if you choose to use a trademark mill or a non-trademark lawyer, you will suffer direct consequences if things go bad. There’s another consequence, however, that everyone suffers.

Due to voluminous increase in poorly drafted applications, inappropriate claims, and DIY errors — the Trademark Office examiners are issuing refusals (“Office Actions”) in significantly greater numbers than ever before. Once an Office Action issues, the applicant must either respond and refute the grounds for refusal, or the application will abandon. (In plain English: you lose, and you’ll have to start over).

Responding to an Office Action takes time. Sometimes, a lot of time. That means significantly higher attorney fees for applicants. And there’s no way around it. Even applicants who use a reputable trademark attorney from the start, are having to incur Office Action response fees — mainly because the applicants who do not use a reputable trademark attorney are precipitating this change in examination procedure.

As a trademark attorney I am a match for clients who respect the value of their brands enough to accord this process the time and consideration it requires. (You should start planning at least a year before launch. If it’s too late for that, OK: but understand that rushing now is not going to make up for the time you have already lost.) I charge hourly for the time I actually spend. No more; no less. Why? Because no two situations are ever the same.

This is your business; your brand; your process. If you respect that as much as I do, let’s talk.