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Trademark Insights: Safeguarding Small Business Brands

• Ed Drozda

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Ever wondered about the power of your brand? Join Ed Drozda and Richard Rimer of the Initiating Protection Law Group  as they dive into the world of brand protection for small businesses. Don’t let 'I didn't know' hold you back from success. Tune in for insights! #BrandProtection #SmallBusiness 

Ed Drozda:

Welcome to The Water Trough where we can't make you drink, but we will make you think. My name is Ed Drozda, The Small Business Doctor, and I'm really excited you chose to join me here as we discuss topics that are important for small business folks just like you. If you're looking for ideas, inspiration, and possibility, you've come to the right place. Join us as we take steps to help you create the healthy business that you've all. Always wanted. Welcome back to the Water Trough. This is Ed Drozda, The Small Business Doctor, and once again I'm joined by my guest Richard Rimer. Richard is a brand protection lawyer, and he's also the founder of the Initiating Protection Law Group, a boutique law firm focused on helping small businesses safeguard their most valuable assets, their brands. For nearly 20 years, Richard worked at large law firms representing major corporations in protecting their intellectual property. Time and time again he encountered a troubling pattern. On the other side of these disputes were often small businesses, unrepresented, and unaware their crossing legal lines. The most common phrase he heard from these companies, and I'm sure many of us have said this, was"but I didn't know"I. Richard, welcome.

Richard Rimer:

Hi Ed, thanks for having me today.

Ed Drozda:

Hey, it's nice to have you back. Let's start out with that question, but I didn't know. Man, how many of us can relate to that? I didn't have a clue it was important what I was doing. Wow.

Richard Rimer:

Francis Bacon said it best, knowledge is power. So many people do not have knowledge, and sometimes in the law it's okay to not have knowledge, but this is one time where your lack of knowledge does not matter at all.

Ed Drozda:

So we can't fall behind that shield and say, I didn't know. We can't use that as a defense.

Richard Rimer:

No, you cannot. Now, there are some nuances as to how guilty are you or more likely, how liable are you? But, the fact that you are liable, the fact that you could infringe someone's intellectual property without having any idea that they existed is a real thing.

Ed Drozda:

Wow, and I think that this speaks to the size of the organizations. You had worked at that time, with larger corporations, and it the small guys that were encountering the difficulties. Now, the large corporations obviously had all the money, time, and energy in the world to go after these little guys, right?

Richard Rimer:

Absolutely. And what I found were a few patterns that replicated themselves over and over again. As I started my journey representing large companies, I really thought that the people saying"but I didn't know" were lying to me, that everyone knows about trademark law; everyone's represented, and everyone has a fair opportunity to be represented. But as I heard it over and over again, I realized these people aren't all lying, at least some of them are telling the truth. And the people I was talking to from my large midtown law firm's office were the soccer coaches, the PTA moms, the people that ran the church bazaar, and other such individuals that helped our communities go. I was kind of on the wrong side of the battle to the extent there's a battle, and you know, my clients were doing nothing wrong in going after these smaller businesses'cause these smaller businesses were doing the wrong thing. But the real issue, the way the system was gummed up was that small businesses were not adequately represented. They weren't informed, they weren't educated, and they really needed to have someone out there advocating for them. So I decided four years ago to start my own law firm focused on small and mid-sized businesses to take away that"but I didn't know" situation and turn it into an asset. You really can't be strategic unless you have knowledge and information. And I thought I would bring that to the masses.

Ed Drozda:

I'm glad for one that you saw through what might be perceived as apparent lying on the part of many of these people. I agree with you, most certainly they know, but I wonder if the vast majority of them think, why should I matter? I'm just a small little fry.

Richard Rimer:

Well If you're a small fry and think you'll forever be a small fry, maybe you can skirt under the radar and be okay. But as a small business owner myself right now, I don't intend to be small forever. I intend to grow. If you're company is nothing more than a replacement for a job that you hated, and you really just hope to operate on your own, maybe you can skirt under the radar. But from the perspective of the large companies and from my large firm perspective, we didn't see those small micro businesses. They were too small to see. They never got on our radar. What we saw were those companies starting to grow. It was always some scalable event that let us know, hey, this company exists. Not this company is now worth pursuing, but it's the first time we ever saw them; when they did something like go through some marketing campaign or maybe launch a new line of products. So they sold gizmos before, they're now gonna sell widgets as well. They go into different states. They hire a sales team. They go to conventions. These first forays into being a big company is what the really big companies saw, and it was the first time they even witnessed these companies and thought, is there a problem here? And often the thing that was a problem was the brand that the small company had forever been using, and was infringing. From day one it was infringing, just no one saw it to judge it or have any sort of a thought about it. So this small company is finally becoming big. The wind's in it's sails. It's thinking that this is a grand time, and it is ready to just hit the scene and go running. And out of nowhere, a big kick in the pants, a cease and desist letter, a lawsuit, a take down request, something like that comes from a big company and you're left scrambling. So instead of having traction and having momentum, you now have to figure out a new way to go forward.

Ed Drozda:

I can see the distinction between the real small fry who has no intention of growing, and those who are becoming visible because their upward track is now out there in the mainstream, people can actually see it happening. So we're in the midst of some very tumultuous times in this country, and I'm curious if there's been a change in the attitude towards, or the impact of intellectual property and its protection. What's going on out there?

Richard Rimer:

The few changes I've seen over my several decades of experience have never been political in nature. I don't care if a guy with a D or a guy with a R is the person in charge of the White House or Congress or whatever. I don't know if Biden and Trump have one iota of difference between them in how a trademark should be enforced or protected. There is no political beef to pick at here. But what I have seen over time is as the economy gets tighter, people get more scared and scarce and they start being more aggressive about their intellectual property rights. So as the economy goes down, you can almost always expect lawsuits and other types of disputes to go up. We were starting to see that a little bit at the end of the first quarter especially, there were some rumblings about the economy maybe not being as strong as it needed to be. It's my perception that that seems to be leveling out now, maybe even going back up, and I'm seeing from a legal perspective less action. So there is no Republican or Democratic way to run an intellectual property practice. The policies don't change from one administration to the other, they never have. But I do see the economy changing that and you know, Ed, going back to our comment just a second ago about the small guys shouldn't worry about it, the ones who are starting to get bigger should, don't plan for being small forever. I mean, that's a plan for failure. If you truly are planning to fail, what are you doing? Why are you even bothering? So, I would argue that at the earliest stages of manageable, as soon as you realize that your company is more than you and a computer, or you and a service truck, or you and whatever your tool of trade is, start thinking is this name that I'm using to identify myself in the marketplace something that's mine? Cause you will start promoting it, whether it's on social media, through a Chamber, or whatever other means you have to get your name out there, you're gonna start promoting it and you'll see it catch on; you'll see it start to be the thing. I was talking to a friend the other day about my own brand and how I view my company and my brand to be almost like my little brother. It's a lot like me, but not exactly. It has its own life at this point. It's four years old, so it's not the oldest thing in the world, but it's so much like me, but not exactly me. As things have changed over time, and I want that, I want this thing to be its own identity, its own calling card to the world so people know when they want quality intellectual property legal services they can look for Initiating Protection. And I happen to be the one that answers the phone now, but five years from now, it'll be someone else answering the phone and I'll be out on a golf course or something. But having the sort of business development, education, relationship building role that is more appropriate for someone at that level. These things change over time and your brand and you are two different things, and as soon as you start to see that divergence between who you are and who your brand is, who your company is, you really gotta think about protecting that brand because it stands for something unique.

Ed Drozda:

That is a very good point, that the brand is unique, that the brand has to convey the message that you want it to convey, and ideally, well of course the goal is to convey that message clearly to the people you want to see it, to hear it, to know it. Right?

Richard Rimer:

Right. Very good. Yeah. I use the word brand quite a bit. My legal colleagues will use the word trademark. And there is a slight difference between a brand and a trademark. And to use the marketing term brand, I'm really taking a lot of license by doing that. That's for marketers, which is not my calling card, my forte. My forte is the legal side and I should be saying trademark, but most people listening to this would probably be a little uncomfortable with me saying trademarks so frequently so I say brand, but I like to think of the brand as being the feeling that one receives when they see a certain company name, a certain logo, or a certain tagline. How do they feel? And a trademark by contrast is the unique symbol that the consumer can see in the marketplace, and quickly know who is providing that good or service. So joke that marketers have soul and lawyers do not. That's the big difference right there. So when I'm talking about your brand is taking on meaning most people do think of the marketing perspective. More people are familiar with how you build a brand from a marketing perspective, and there's nothing wrong with that. That's absolutely necessary. I just wanna make sure that you don't build this thing that you don't own. Almost like building a house on property you don't own. That would be foolish. Make sure you own the property before you build the house on top of it.

Ed Drozda:

The term brand is very personal because it emanates from me. The brand is something that comes from within. It is something that I want you to know about me, my product, my service, whatever it might be. It's personal. Trademark sounds like a technical requirement if you're comparing the two words. In other words, to protect my brand, back to your personal title, brand protection lawyer, you are involved in the legal aspects of protecting that which is personal. It just so happens the trademark is the way to facilitate that in the legal space, right? But the brand is really personal and that is what the business owner, I believe, is trying to convey.

Richard Rimer:

Absolutely. A brand in my mind is the most effective sign or symbol in all of commerce. From a long, long time ago, the trademark laws that we have today emanate from A, cattle that were branded before Christ was on the planet, and then B, from the medieval times during the Renaissance, all the different guilds assigned different markings that people could put on their, we'll say silverware to use one. So if you and I Ed are both in the silver smithing world, you might have a ED symbol, and I'd have an RR symbol, and yours would come to symbolize a certain level of quality. Maybe it's the silver you use, maybe it's just your marksmanship. Maybe it was how pretty you made things, but whatever it was, yours and mine would be different and people would start to assign a certain amount of value to it. And if yours became more valuable and I started putting an ED on mine to try to get some of those dollars I would be taking rights from you. The same thing exists today in the world of two competitors, whether it's soft drinks, fast food, consulting firms, or whatever it might be, they each stand on their own and they each have a symbol that marks it, and when you see these symbols out in the marketplace you immediately have a feeling. That feeling is driven by marketing. That feeling is driven by people telling you the story over time. This is how you should feel about our company, about the experiences you have as you actually interact with the company. All these things become a single feeling that you immediately get when you see that, and that's a pretty powerful thing in commerce to see a symbol and immediately have a reaction. That's huge. That's what everyone aspires to. Even bad ones by the way. I mean, sometimes you need to drive some clients from you. It serves everyone very well. Then I come behind and make sure that this symbol and all the feelings that invokes belong to you and no one else. That you can actually utilize it and feel confident that you have the rights in that feeling.

Ed Drozda:

To feel confident that you can convey yourself in this way, not knowing that somebody else may be doing the same thing, well that's one of the reasons you're here, not to say that people are aware of these things. I came up with this great idea. It feels right for me. I put it out there, but to find out that somebody else is using the same symbol, not the same brand, because they can't be me, but the same symbol, it would decimate my plan.

Richard Rimer:

Absolutely. Yeah. And I like your difference of symbol versus brand right there. The brand is a feeling, the symbol is the thing you see to have that feeling.

Ed Drozda:

Right, the symbol evokes something. Hopefully, ideally, ideally, I, I, I ideally evokes the notion, oh, this is Richard Reimer's product here. Right. This is Ed Drozda's product here. Not that the symbol itself is pretty, but it is symbolic of something and that something is the brand. Yes?

Richard Rimer:

Yes. And it takes a lot of time and money on the marketing side to really make that feeling drive home into a relevant number of people, to all your consumers that you want to see you to have the right feeling. I have four daughters. I'm forever in malls with my daughters, and they are reacting to symbols that I have no response to whatsoever because those companies have not marketed to me, they've marketed to my daughters. But before those companies market to anybody, they really need to make sure they own that symbol so that the feeling that's attached to that symbol also belongs to them and not to someone else.

Ed Drozda:

Needless to say, prior to the time that we create a symbol, we develop a brand, we put a lot of thought into what we are doing. Why we are doing it, our story, if you will. And we put a lot of thought into how we're going to image and present this to the world. So by the time we get to putting a symbol out there, by the time we are engaged in the process of marketing a brand, we've invested a lot of time, money, and energy. The idea that we would do so without assuring ourselves that the image that we put out there is not ours to use, it does seem kind of, well, hard to believe. For all the effort that would be put in to get to that space. It seems hard to believe that we wouldn't be more attentive to that. And yet Richard, are we?

Richard Rimer:

No, it happens all the time. I personally feel, I'm a realist, but my personal feelings are that I should be a day one experience for a company. That before a company really starts investing in developing its brand they should talk to me or someone like me to make sure that brand is something they can own. The realist in me understands that especially companies on a shoe string budget, and that includes nearly every small and mid-sized company starting out don't have budgets for intellectual property attorneys and similar types of people. I might be comparable in price to a good tax accountant or something like that, so the pricing is real, but not significant, not huge. But you really often don't get to the point where you can afford a good tax accountant until you've been 3, 4, 5 years into the business and you're now starting to grow. I find that from a realist perspective, I should be seen by companies right before they go through that scalable event, right before they launch that big marketing campaign, right before they hire that huge sales team, right before they launch their second product into the marketplace. All of these items are gonna put them irrevocably into the public eye. And can their brand stand up to that scrutiny now that people are really gonna look at the brand and be judgmental about whether or not there's any infringement or not. What do you think about your brand? What do you know about your brand and you're generally flying blind? There are four steps to brand protection and step one is essentially turning the lights on in a dark room. You Ed have been around the world long enough to know how to get around a room. I'm not concerned that you would bump into furniture or not know how to go into an office and pick up a pencil cup without much effort at all. However, make it an unfamiliar dark room. You don't know how to get around that room. You don't know where the furniture is. You don't know where the pencil cup is. You don't know there's a cord on the floor you might trip over or whatever. Turn the lights and it's easy. In the world of brand protection searching is that item that is like turning on the lights in a dark room. To be able to look into the marketplace and see what similar brands are being used and what others are doing, so you can understand what risk you have with your brand, what opportunities you have with your brand. Searching is by far the most important thing. It's information gathering, and at that point you can have strategy. I mentioned at the beginning that Francis Bacon said, knowledge is power. It's because you can now act from a position of knowing, and you can't act from a position of knowing if you don't know. Let's do a search. The second step is to authenticate your rights; to get a registration through the federal system or maybe a foreign country if that's what's important to you. Or possibly even just a states registration. All the 50 states in the US have their own registration regimes. Let's make sure that the world knows this right is yours and you're giving notice to them. Much like when you buy real property, you record your deed with the courthouse. That lets the whole world know that that piece of ground is yours. Right. Same thing with a registration for a brand or a trademark. And then further steps, which I won't dive into too much, are policing and enforcing. Let's make sure no one else coming behind you is using a similar brand that's gonna cause confusion with your consumers, with the marketplace, the public. And then if they are, let's do something about it. Enforcement doesn't mean lawsuits. It could, but it's not the only thing it means. It could be a simple businessman to businessman conversation. It could be a take down request in social media. It could be a cease and desist letter. It could be all the above, none of the above. There's some combination and it's gonna differ depending on the situation, but to let people know this is mine and I intend to keep it unique.

Ed Drozda:

Is there an ongoing process of monitoring to see if there has been some kind of violation once a legal transaction has taken place and you do in fact own this brand identity? Is there a process of monitoring? How does that work?

Richard Rimer:

Yeah, that's a great question. We were talking beforehand and I know that you now live in the southeast and you've seen all those cars going around with the trademark police on the side, right? Yes. You haven't'cause they don't exist. Enforcing or policing of trademark rights is not the government's responsibility, it is the business's responsibility. Now, the government will, if you have registered your intellectual property rights, they will compare for future filings against yours and might tell future applicants that your brand is too similar to this one that's been registered and keep them from getting registration. But again, that's the government enforcing it. That's only for registrations, not for use. It is up to you, the business owner, to do something to actually make sure no one is causing confusion. Now, in a very informal sense, it could be just keeping your eyes open. Imagine a scenario in which you're in your shop one day and that your favorite client comes in and says hey Ed, I went to Vegas last month and I saw your booth at the big convention. I'm sorry I couldn't make it by. It looked like you had a big crowd. You're thinking, I didn't go to Vegas last month for a convention, and here my best client is confused. Someone else was out there that my best client thought was me. What's going on? I need to see what's causing this confusion. Or maybe you see a billboard as you're driving into work one day that looks like your brand and you're thinking, that's not my billboard. I don't have billboards. What is this? So these informal things happen, but you can also set up systems of policing through various online resources. We talked a little bit about AI. AI is gonna go a long way to helping people do that sort of policing, to sort of go out into the marketplace. There's lots of things you need to look at. You obviously need to look at just what's happening online, Google searches, if you will, but just what's happening online, what's happening in various social media and e-commerce platforms? What sort of

filings are being made in the trademark offices

Richard Rimer:

around the world? Both the filings being made, the registrations being issued, the publications being put out there, in all 190 plus trademark systems around the world, and then'cause that's not enough, we also need to look at applications for new domain names. You know, who is applying for your domain name dot QRS, the next one that's gonna come out. There are so many top level domains like dot com that are out there that no one company owns their name in all of them. Even the Coca-Cola size companies don't do that anymore. So, seeing someone look for initiating Protection dot QRS should be a sign to me that I need to at least look at that and see what's going on there.

Ed Drozda:

Wow. It's just so expansive, isn't it? It's very clear that it's not really sufficient for the layperson to try to manage all this themselves, especially when so much is at risk. Our brand is our identity, and that which we use to put it in front of the audience, in front of the world is absolutely critical. So, we are approaching the end of our time here. Funny how time goes quickly when you're having fun. What would you like to leave us with? Is there anything particularly critical, important that you'd like to leave us with?

Richard Rimer:

You know, we talked about newer things, but I'll leave you with something that's old because it happens all the time. Sure. When you're choosing a brand, and I know I'm talking to a lot of younger companies that are gonna be launching new products or maybe new companies soon, do not choose a brand that describes exactly what you do. There is no ability or very limited ability to protect that from a legal perspective. You see people doing that all the time, and their thought is, well, that will make it easier for my consumers to find me and know what I'm doing. For example, my company's name is Initiating Protection Law Group. The law group does that portion. Initiating protection is something that's unique and different. No one else, another law firm that I'm aware of is using that. That is my uniqueness. So pick something unique. And when I say descriptive, obviously the words law group are descriptive. They're fine to be in there, just not only those, but also things are descriptive that people don't think of as last names. If I had chosen Rimer Law Group, there's really nothing distinctive about that, and it's very difficult to protect. And then, place names. I'm in the state of Georgia. If I had chosen Georgia Law Group, that would be very difficult to protect. So put some thought into this and really what I'm saying is plan as though you're going to be a smashing success. Don't put yourself in a position so that five, 10 years down the road, you're going to have to rebrand to give yourself the legal recourse that you'll want when you are a smashing success. It's very easy to make some very minor changes at the beginning and give yourself some significant advantages down the road.

Ed Drozda:

Because to go back and do it down the road would be incredibly cumbersome, if not practically impossible.

Richard Rimer:

And mostly from a marketing perspective the business cost of doing that is what's so challenging.

Ed Drozda:

Right. I don't know who you are anymore. Yeah, I could see that being disastrous. Well, Richard, I wanna thank you so much for being here with me today. I always find your conversation and your online videos, by the way, very informative, and I thank you for that. Once again, my guest today is Richard Rimer, a brand protection lawyer and the founder of the Initiating Protection Law Group. I want to thank you and remind you all that your brand is your brand. Maintaining that asset, being sure to protect it from others, that is to keep it in your hands is extremely important, so don't lose sight of that. Richard, thank you again, Sir.

Richard Rimer:

Thank you, Ed, have a great day. Thanks for having me.

Ed Drozda:

You as well. Folks, this is Ed Drozda, The Small Business Doctor. Here at The Water Trough, as always, I wanna wish you a healthy business, and I wanna wish you a safe and well identified brand.