As featured on Inc.com
For anyone who has read any of my articles in the past you may pick up on a distinct theme. As with many writers I draw inspiration from my life experiences and how those experiences shape my views on business, customer service and the like. So without further adieu, what happened today?
At The Trademark Company we have created a great place to work. Happy hours. Trips to local sporting events. Other corporate events. One of these traditions is that no one should work on their Birthday, or at least not a full day. So whenever we have a birthday in the office the tradition is the birthday boy or girl comes in, checks their messages, yadda yadda yadda, we have lunch, a sugar bomb cake and send them on their way to enjoy the rest of the day off.
So today it fell on me to get the cake. I know that our birthday girl loves ice cream cake so I planned on picking one up for her just before the lunch. No worries, I thought, the ice cream store that makes the best ice cream cakes is two blocks away. I’ll just swing up at 11:30 a.m., just before the lunch, and grab one of their delectable morsels. Okay, so I waited till the last minute. My bad.
When I got to the store I pulled on the handle. The door would not open. Like all people faced with a door that will not open I curiously looked at the seam between the door and the frame to see if the lock was engaged. To my surprise it was. Hmmmm, I thought, why is the door locked in the middle of the day? Looking inside I could see the employees standing around. Some working on cleaning counter tops, some just chatting away. I stepped back looking for an hours of operation sign. There it was, posted clear as day: Winter Hours, M-F, 12 p.m-6 p.m. Ahhh, I thought realizing I would soon be on the way to forage for another place that makes ice cream cakes.
But to my good fortunate, or so I thought, an employee came to the door. It was now 11:45 a.m. Awesome. He is going to let me in early so I can buy a cake. To my chagrin, however, he just looked at me from the other side of the window and shrugged his shoulders as if to say “Sorry bud, we’re closed.” Got that from the sign, thanks. But since I figured I was here, he was there, I was one twist of a wrist on a latch lock from achieving my objective. So I decided to sweeten the deal. I opened my wallet and pulled out a bundle of twenties. As a married man with children it is not often I actually have cash in my wallet. But today was my day!
I subtly waived the green at the employee through the window pointing to the display case which held $50 to $75 cakes. This would be a good sale to start the day for a store that averages $4 to $5 per cone. The employee approached the door. My victory was assured. Capitalism had triumphed and in a few minutes I would be bringing back an awesome chocolate chip cookie dough ice cream cake that would be the best sugar bomb we had had in the office in months.
As he stepped forward, however, he shrugged again, pointing to the sign with the hours of operation, and smirked as he walked away to chat with his other employees. Foiled! Commerce and the temptation of an above-average sale had not been enough.
Undaunted, I stuffed my twenties back into my wallet, drove to my local grocery store, and purchased a wonderful Carvel Ice Cream cake. Thank you Carvel! Always great. Available 24 hours a day, 7 days a week.
So how do I twist this morning’s mini-adventure into a business lesson you can use in your business?
1. Your Business is Not Irreplaceable
We have a saying around here that has guided us since day one: answer the phone or someone else will. What does this mean? Quite simply that you must recognize that if you do not answer the proverbial phone your competitors will. With the rise of the Internet and information as a whole now, more than ever, your prospective consumers have choices. Within a few keystrokes on their iPhone they can locate competing services that, if yours are not available, they can use to replace you. Recognizing this you must answer your phone. You must open your store. You must be prepared to offer them what they need when they need it. If not, you’re just a couple of keystrokes away from being a memory.
How do I know? Let’s look at this morning’s example. Where did I get my ice cream cake? From the place I wanted to buy it from? Or the place I could buy it from? Answer the phone! Make the sale.
2. Go Above and Beyond
Many of you may be skeptics. Many may blame me for going out at the last minute to secure our sugar bomb. You all would be right. But at the end of the day I had money and a need to purchase and that is all that should matter when we are talking about a transaction for goods and services. What kept the original store from a good transaction? Simple. A failure to go above and beyond. Specifically, turning a latch and letting a customer in a scant 10 minutes before opening.
Around here every interviewee is given a series of questions to illicit how they would respond to these types of scenarios. The scenario typically begins with an ordinary customer calling in during normal work hours. If that customer states they can only complete the order if you can call them back at 6:00 p.m. what do you do? What if your normal workday ends at 5:00 p.m.? What if you had a dinner planned with a friend at 6:00 p.m.? What happens if you had tickets to the 2012-2013 National Championship Football Game matching the Florida Gators against USC? What would you do? You get the point. Around here we want only people who will go above and beyond or figure out ways to do so.
If one of our employees would have been working the ice cream cake store this morning I would have been stunned if they did not open the door. But let’s assume, just for argument’s sake, some strange requirement like insurance coverage, fumigation, etc. precluded them from unlatching the door. There were a hundred other ways to handle this. For instance, unlatch the door, politely state we do not open for a few more minutes, but if you know what you would like I can have it ready when we open. They could have offered me a discount. Offered to take down my credit card information and have it delivered (recall, there were several of them just standing around holding the floor in place). Anything but what they did would have been better.
In short, even if they were closed and I was admittedly early they still could have gone above and beyond. They didn’t. In return, they lost a sale and I was reminded how easy it is to get one of the competitor’s products. Did I mention how good the Carvel cake was? By the way, it was half the price of the other place that wouldn’t sell me their cake. Think I’m going back?
The Trademark Company
Wednesday, February 29, 2012
Monday, February 27, 2012
The Trademark Dilemma: What Makes a Great Trademark?
As a former trademark examining attorney for the U.S. Patent and Trademark Office and founder of The Trademark Company I am often asked for suggestions on how to select a great trademark by our start-up business customers. The response is always the same, "It depends on what you want out of your trademark."
There are two schools of thought in selecting a great trademark that every new business must consider. On one hand do you want to use a completely coined name? Something that no one has ever heard of such as Google or eBay.
On the other, do you want a trademark that creates instant interest in the product or service because it tells your prospective customers what you provide and what they’ll get (e.g., FROSTED MINI WHEATS for breakfast cereals, VISION CENTER for retail store services featuring eyewear).
Both schools of thought have their benefits. Both also have their detriments.
Which should you choose? Like I said above, it depends upon what you are looking for out of your trademark. Coined trademarks, those that are completely made up, are the strongest form of trademarks and, in theory, the easiest to protect (e.g., Google, eBay, Hulu, etc.). But beware, although easier to protect, such trademarks do not tell the consumer what you do or what goods or services you provide. As such, if you intend to coin your own trademark be ready to spend more to promote your brand name as there will not be instant recognition by consumers of what you do or provide.
Descriptive trademarks, on the other hand, provide the owner with instant recognition for what their brand does (e.g., NEW YORK PIZZERIA). This comes at a cost, however. Descriptive trademarks are very hard to enforce and, as a result, may not provide the owner the ability to enforce their trademarks (e.g., the owner of NEW YORK PIZZERIA, more likely than not, cannot stop someone else from using NEW YORK CITY PIZZERIA even though the trademarks are very similar). As such, if you are looking to adopt a trademark that instantly drums up interest in your goods or services and will cost less to brand adopting a descriptive trademark may be best for you. You simply need to know that the rights you will acquire in any such trademark may never entitle you to exclude others from the use of similar trademarks.
So in the end how do you select a great trademark? It depends. What are you looking for?
The Trademark Company
There are two schools of thought in selecting a great trademark that every new business must consider. On one hand do you want to use a completely coined name? Something that no one has ever heard of such as Google or eBay.
On the other, do you want a trademark that creates instant interest in the product or service because it tells your prospective customers what you provide and what they’ll get (e.g., FROSTED MINI WHEATS for breakfast cereals, VISION CENTER for retail store services featuring eyewear).
Both schools of thought have their benefits. Both also have their detriments.
Which should you choose? Like I said above, it depends upon what you are looking for out of your trademark. Coined trademarks, those that are completely made up, are the strongest form of trademarks and, in theory, the easiest to protect (e.g., Google, eBay, Hulu, etc.). But beware, although easier to protect, such trademarks do not tell the consumer what you do or what goods or services you provide. As such, if you intend to coin your own trademark be ready to spend more to promote your brand name as there will not be instant recognition by consumers of what you do or provide.
Descriptive trademarks, on the other hand, provide the owner with instant recognition for what their brand does (e.g., NEW YORK PIZZERIA). This comes at a cost, however. Descriptive trademarks are very hard to enforce and, as a result, may not provide the owner the ability to enforce their trademarks (e.g., the owner of NEW YORK PIZZERIA, more likely than not, cannot stop someone else from using NEW YORK CITY PIZZERIA even though the trademarks are very similar). As such, if you are looking to adopt a trademark that instantly drums up interest in your goods or services and will cost less to brand adopting a descriptive trademark may be best for you. You simply need to know that the rights you will acquire in any such trademark may never entitle you to exclude others from the use of similar trademarks.
So in the end how do you select a great trademark? It depends. What are you looking for?
The Trademark Company
Wednesday, February 15, 2012
Business Lesson From Beyonce and Jay-Z
As featured on Inc.com.
In late January, Beyonce and Jay-Z set off a firestorm when they applied to register their newborn daughter’s name as a trademark. The couple applied to register the trademark BLUE IVY CARTER in connection with a host of goods and services, everything from clothing to entertainment services.
Some have criticized the application as a shrewd business move, potentially setting forth plans to monetize the name of the famous couple’s child. Perhaps. However, if you understand a little bit more about the way our trademark system works here in the United States their efforts were, more likely than not, to make sure that others do not wrongfully capitalize off their child’s persona and not about actually capitalizing on the same for themselves.
First and foremost, understand that Beyonce’s holding company, BGK Trademark Holdings, was not the first to file an application to register the child’s name as a trademark. On January 11, 2012, just a few days after the child’s birth, a New Jersey individual filed to register the trademark BLUE IVY CARTER NYC in connection with children’s clothing. Not to be outdone, on January 20, 2012 a Long Island company applied to register the trademark BLUE IVY CARTER GLORY IV in connection with fragrances and other similar goods. Why are they always from New York or New Jersey?
It was not until after it was apparent that others were trying to capitalize on their child’s name that Beyonce’s company BGK Trademark Holdings filed its own trademark application to offensively block other’s attempts to register the name.
Aside from my personal belief that stars are entitled to privacy in their private lives and that their children should always be 100 percent off limits to media and others attempting to capitalize upon these famous families, as is the case here, there are some clear lessons you can learn from Beyonce and Jay-Z for your business which can help you avoid like trademark disputes in the future.
1. Famous People & Trademarks. First and foremost, famous people have a leg up over you and regarding the registration of trademarks. How so? Well, in fairness, it is only in connection with their names. For instance, I will never be able to register TIM TEBOW RULES—DEAL WITH IT! Any hope I had of starting my tiger blood business under the name SHEEN’S ALL CRAZY ALL THE TIME might as well go right out the window. And I can forget about that business plan to create a new video seminar SARAH PALIN: HOW TO EXTEND YOUR 15 MINUTES OF FAME. Why?
Two words: false association. You are not permitted to register a trademark that implies a false association with another and, in particular, a famous individual. As such, once you have achieved a level of notoriety, to some degree, your name is already protected as a trademark. Even if you have yet to file for the same with the U.S. Patent and Trademark Office others will still be precluded from registering your name therewith.
How famous do you have to be to be afforded this protection? Tonya Harding famous (look it up if you need to—think Olympics and knee whacking)? Paris Hilton famous? Michael Jordan famous? There is truly no bright line test. So long as your name is sufficiently well-recognized and it’s implicit that others would try to profit from said fame, it cannot be registered as a trademark with the U.S. Patent and Trademark Office without your express written consent.
2. Intent-to-Use Application. Still unsure. Well, whether you are famous or not you can always avail yourself to the protection under the United States’ intent-to-use filing provisions.
In the old days if you wanted to secure trademark rights, you had to actually begin use of a trademark. For instance, when Coca Cola wanted to bring out the now iconic Coke Adds Life slogan, they had to actually start using it before they acquired rights in the same. The problem with that? When a big company like Coca Cola wants to roll out a new slogan literally thousands of people know about it in advance, from the marketing team to production to the hierarchy who green-lighted the campaign. Back then, word would leak out and on the eve of a launch of a new multi-million dollar campaign and some unscrupulous person could rush to the U.S. Patent and Trademark Office and file for Coke Adds Life, saying they had been using it for a few months. This was a blatant attempt to profiteer off of Coke’s new campaign which would then be too far in the process to change. Too often this would result in a legitimate company having to pay off such individuals because they were the first to file and, allegedly, the first to use even if their motives were less than honest.
So what did we do? Years back, Congress, when they actually worked for the citizens of this country, passed a statute to allow individuals and businesses alike to reserve rights in trademarks they intend to use in the future. Today, you can acquire trademark rights in a trademark simply by filing an application with the U.S. Patent and Trademark Office for a trademark that you have a bona fide intent to use in the future. Provided it is available, the U.S. Patent and Trademark Office will reserve the trademark for you and, once placed in use, allow you to register the same.
So in a microcosm, what have Beyonce and Jay-Z taught you about trademark law? First, you cannot trademark a famous person’s name unless you have their permission. Likewise, if you are a famous person, you are already entitled to the protection of your name under trademark laws. Second, and more applicable to all businesses, if you have a trademark you intend to use in the future get an intent-to-use trademark application on file with the U.S. Patent and Trademark Office as soon as possible. It will reserve your rights in the future use of the trademark and preclude others from either intentionally, or unintentionally, beginning use of a like trademark that could diminish or block your rights in the same.
The Trademark Companyhttp://www.blogger.com/img/blank.gif
In late January, Beyonce and Jay-Z set off a firestorm when they applied to register their newborn daughter’s name as a trademark. The couple applied to register the trademark BLUE IVY CARTER in connection with a host of goods and services, everything from clothing to entertainment services.
Some have criticized the application as a shrewd business move, potentially setting forth plans to monetize the name of the famous couple’s child. Perhaps. However, if you understand a little bit more about the way our trademark system works here in the United States their efforts were, more likely than not, to make sure that others do not wrongfully capitalize off their child’s persona and not about actually capitalizing on the same for themselves.
First and foremost, understand that Beyonce’s holding company, BGK Trademark Holdings, was not the first to file an application to register the child’s name as a trademark. On January 11, 2012, just a few days after the child’s birth, a New Jersey individual filed to register the trademark BLUE IVY CARTER NYC in connection with children’s clothing. Not to be outdone, on January 20, 2012 a Long Island company applied to register the trademark BLUE IVY CARTER GLORY IV in connection with fragrances and other similar goods. Why are they always from New York or New Jersey?
It was not until after it was apparent that others were trying to capitalize on their child’s name that Beyonce’s company BGK Trademark Holdings filed its own trademark application to offensively block other’s attempts to register the name.
Aside from my personal belief that stars are entitled to privacy in their private lives and that their children should always be 100 percent off limits to media and others attempting to capitalize upon these famous families, as is the case here, there are some clear lessons you can learn from Beyonce and Jay-Z for your business which can help you avoid like trademark disputes in the future.
1. Famous People & Trademarks. First and foremost, famous people have a leg up over you and regarding the registration of trademarks. How so? Well, in fairness, it is only in connection with their names. For instance, I will never be able to register TIM TEBOW RULES—DEAL WITH IT! Any hope I had of starting my tiger blood business under the name SHEEN’S ALL CRAZY ALL THE TIME might as well go right out the window. And I can forget about that business plan to create a new video seminar SARAH PALIN: HOW TO EXTEND YOUR 15 MINUTES OF FAME. Why?
Two words: false association. You are not permitted to register a trademark that implies a false association with another and, in particular, a famous individual. As such, once you have achieved a level of notoriety, to some degree, your name is already protected as a trademark. Even if you have yet to file for the same with the U.S. Patent and Trademark Office others will still be precluded from registering your name therewith.
How famous do you have to be to be afforded this protection? Tonya Harding famous (look it up if you need to—think Olympics and knee whacking)? Paris Hilton famous? Michael Jordan famous? There is truly no bright line test. So long as your name is sufficiently well-recognized and it’s implicit that others would try to profit from said fame, it cannot be registered as a trademark with the U.S. Patent and Trademark Office without your express written consent.
2. Intent-to-Use Application. Still unsure. Well, whether you are famous or not you can always avail yourself to the protection under the United States’ intent-to-use filing provisions.
In the old days if you wanted to secure trademark rights, you had to actually begin use of a trademark. For instance, when Coca Cola wanted to bring out the now iconic Coke Adds Life slogan, they had to actually start using it before they acquired rights in the same. The problem with that? When a big company like Coca Cola wants to roll out a new slogan literally thousands of people know about it in advance, from the marketing team to production to the hierarchy who green-lighted the campaign. Back then, word would leak out and on the eve of a launch of a new multi-million dollar campaign and some unscrupulous person could rush to the U.S. Patent and Trademark Office and file for Coke Adds Life, saying they had been using it for a few months. This was a blatant attempt to profiteer off of Coke’s new campaign which would then be too far in the process to change. Too often this would result in a legitimate company having to pay off such individuals because they were the first to file and, allegedly, the first to use even if their motives were less than honest.
So what did we do? Years back, Congress, when they actually worked for the citizens of this country, passed a statute to allow individuals and businesses alike to reserve rights in trademarks they intend to use in the future. Today, you can acquire trademark rights in a trademark simply by filing an application with the U.S. Patent and Trademark Office for a trademark that you have a bona fide intent to use in the future. Provided it is available, the U.S. Patent and Trademark Office will reserve the trademark for you and, once placed in use, allow you to register the same.
So in a microcosm, what have Beyonce and Jay-Z taught you about trademark law? First, you cannot trademark a famous person’s name unless you have their permission. Likewise, if you are a famous person, you are already entitled to the protection of your name under trademark laws. Second, and more applicable to all businesses, if you have a trademark you intend to use in the future get an intent-to-use trademark application on file with the U.S. Patent and Trademark Office as soon as possible. It will reserve your rights in the future use of the trademark and preclude others from either intentionally, or unintentionally, beginning use of a like trademark that could diminish or block your rights in the same.
The Trademark Companyhttp://www.blogger.com/img/blank.gif
Friday, February 10, 2012
7 Steps to Turbo-Charge Your Efficiency
As featured on Inc.com.http://www.blogger.com/img/blank.gif
Let’s face it, one of the most valuable commodities in any busy person’s life is time. No matter how much we may wish for it, making more of it is simply outside the reaches of modern science. The myth of the 25-hour day, for the foreseeable future, will remain just that, a myth.
So how do you stretch more time out of your finite resource of the same? Efficiency. In short, we may not be able to create more time, but we can turbo-charge the limited time we have. Here’s how:
1. Set Daily Goals. One of the best ways to ramp up your efficiency is to set daily goals. Each morning, before your work day begins, make a list of the top things that you want or need to accomplish during the work day. Rank them in order of importance. Depending upon how long each task will take you, your list may contain two items or ten. Once constructed, use the list as your guide to keep you focused throughout the day to work towards completing those goals. Keep the list readily accessible and in plain sight on your workspace so that it will act as a constant reminder for those tasks that you want to complete in a given day. As you complete each of your predetermined objectives, check them off. If you do not complete a given goal, move it forward into the next day. This simple task of setting and monitoring daily goals is amazingly effective at increasing your productivity.
2. Delegate. If you are in a position to delegate make sure to do so. Too often we are saddled with a belief that we are the only person that can do a specific task or do it well enough. Throughout my career I have been particularly afflicted with this mistaken belief. There was a time in my career that I would type all of my own letters even though I had a secretary whose job it was to handle this task for me. I would think, it is going to take me longer to explain to her what needs to go into the letter than it would if I just go ahead and write it myself, which I then proceeded to do.
Learning to delegate is an acquired art form, one everyone should try to master. Believing that a task cannot be delegated is truly more about control issues and less about whether or not it truly can be assigned to someone else. Why spend two hours on a task yourself if instead through crafting 10 minutes of detailed instructions, you can delegate the project to another? Accordingly, if you have someone to whom you can delegate, learn how to delegate and learn how to do it well.
3. Let the Phone Ring. Let E-mails go Unanswered. You’re in the middle of solving an issue relating to one of your goals for the day. The phone rings. You answer. On the other end of the phone is someone who needs to speak with you about something that is important but not related to the task at hand. The conversation only lasts three minutes and then ends. However, when you go to pick up where you left off you need to quickly review where you were, get your brain back on track and then finally pick up and keep moving on the same.
Do not assume that picking up that quick call only cost you three minutes of being off task. It cost you your focus, the three minutes, and ultimately the review time of thinking about where you left off and the time it takes to re-engage your brain on the specific project you were working on before you were interrupted. All in all that three minute call, depending upon the complexity of the issues being dealt with, may cost you six, seven, even 10 minutes!
If your job allows, keep focused. Turn the phone (off?) ringer volume down so as not to disturb you or simply do not answer the same if the caller on the caller id is not calling about an urgent matter. You would be amazed at how simply allowing callers to leave a voice mail and then responding later in the day, in bulk, to all of your messages can truly amplify your efficiency.
However, it doesn’t have to end there. The same policy should be employed in regard to e-mails. How many e-mails do you really get that need to be viewed or read almost instantaneously? So don’t. Let them sit. They’ll still be there when you complete the task at hand. Like your calls just designate a time during the day, or two if you prefer, to answer all of your e-mails. Once again, by not allowing these constant interruptions, the efficiency with which you can accomplish the goals on your list will be increased exponentially.
4. Close the Door. The phone and e-mails are not the only distractions in modern office life. Your co-workers can really drag down your efficiency as well. Back when I worked in a large law firm in Washington, D.C. I would routinely need to go see one of the head partners in his big corner office. Almost without exception every time I walked into his office he would sigh, roll his eyes, and growl “Yes, what is it?” For the first year or so I worked there I simply chalked it up to the fact that he was personality-challenged and sadistically enjoyed degrading others, in other words, a lawyer. But one day I was standing down the hall from his office and it hit me as to why he was consistently grumpy. I was not the only associate that was constantly demanding attention from the big cheese. While I stood there speaking with other lawyers in the hallway I witnessed a veritable conga line of associate attorneys strolling through his office to ask him questions here, decisions there. No wonder he was so upset every time I would come into his office. Although I did not realize it, someone else had been in there two minutes before and again five minutes before that. If the man had seven minutes in a row to think to himself and get his own work done he would consider it a good day.
Why do I mention all of this? If you have the capability, sometimes you just need to close the door. If you work in an open workspace, hang a sign. Open-door policies are great, but they can often lead to an erosion of efficiency that is disturbing. Don’t be afraid to shut the door and politely let people know this is my efficient time. If they need to speak with you they can come back later or, better yet, set up daily pre-scheduled times in which they will have your undivided attention. By moving away from constant interruptions you will be able to stay on task and, consequently, move more efficiently through the goals you set every day.
5. Facebook, Twitter, and Instant Messaging. The secret time killers. Let’s say you spend 10 minutes on Facebook a day. For the majority of us that is being conservative. Let’s further say you use Twitter. Chalk up another 10 minutes. By the way, did you IM any of your friends today while at work? Come on, you know you did. Maybe the wife or the hubby had a funny story to share with you or Madonna just announced her latest concert dates and everyone had to BUZZ each other over it. Another ten minutes. So how much did we spend? Ten minutes? Twenty? Thirty? Wrong. It was more like 130 hours. Over three 40-hour work weeks.
Huh? You might be asking yourself. What you talkin’ about Willis?
It’s simple. If you spend 30 minutes a day on social media and instant messaging that adds up to two and a half hours per week. There are 52 weeks in a year. Fifty-two times two and a half is 130 hours. One hundred and thirty hours equates to over three 40-hour work weeks you are spending on social media and chatting online per year. It’s like a whole other vacation.
Is this overly dramatic? Maybe a little. But recognize what spending time on these sites does to your productivity. Thirty minutes a day, on average, equates to a loss of up to three plus weeks of work per year. So if you are just spending 10 minutes a day doing the same, that’s like one entire lost week of work. Wow.
I’m not saying don’t do it. I am just saying recognize how the numbers add up. Once you see how they do, if you want to ramp up your efficiency limit the social chats to only designated times during the day when you are already taking a break. Trust me, that wicked awesome zinger you’ve been waiting to post on Facebook can wait.
6. Intellischedule. For those of you with spell-checker (yes, I have heard you are out there) this word will not come up anywhere. Why? I coined it. What does it mean? In brief, know thy self, know thy efficiency.
Long ago, I figured out that I am most productive for matters which involve a more detailed thought process in the morning. Matters such as complex legal briefs, legal research, reviewing complex contracts, etc. Afternoons, I prefer to just pound through matters that take a little less thought process but may be far more numerous to deal with such as quick e-mail questions and returning phone calls.
The point is, know when you are most productive in consideration of what you have to do in a given day. Then schedule your goals during those times given your particular strengths or weaknesses throughout the day. Intellischedule.
7. Focus. Do Not Multi-Task. Lastly, we hear a lot about people who can multitask. Who can do three things at once. But there is a growing consensus that multi-tasking actually destroys efficiency. In short, while you are multi-tasking your focus is split between two or more tasks. This erodes the efficiency with which you can accomplish either task. Don’t believe me?
Try this simple test. Find a few things in your schedule you have to do every day. Perhaps it is to get your phone messages at the beginning of the day and check your e-mails to see what needs an immediate response and what can wait. Take note of how long each task normally takes independently. Now do this. Check one e-mail and stop. Check one voice mail and stop. Go back and check the next e-mail and stop. Go back and check the next voice mail and stop and so on and so forth. Which took more time? The time it took to accomplish the two independent tasks by themselves or the time it took to multitask through both of them together. I’d be willing to bet focusing on one at a time was faster.
But this is just an example. By focusing on one thing at a time you will typically be able to accomplish that goal more quickly than if you are multitasking two or three things at once. Focus on an individual goal, accomplish it, and move on to the next goal on your daily list.
The Trademark Company
Let’s face it, one of the most valuable commodities in any busy person’s life is time. No matter how much we may wish for it, making more of it is simply outside the reaches of modern science. The myth of the 25-hour day, for the foreseeable future, will remain just that, a myth.
So how do you stretch more time out of your finite resource of the same? Efficiency. In short, we may not be able to create more time, but we can turbo-charge the limited time we have. Here’s how:
1. Set Daily Goals. One of the best ways to ramp up your efficiency is to set daily goals. Each morning, before your work day begins, make a list of the top things that you want or need to accomplish during the work day. Rank them in order of importance. Depending upon how long each task will take you, your list may contain two items or ten. Once constructed, use the list as your guide to keep you focused throughout the day to work towards completing those goals. Keep the list readily accessible and in plain sight on your workspace so that it will act as a constant reminder for those tasks that you want to complete in a given day. As you complete each of your predetermined objectives, check them off. If you do not complete a given goal, move it forward into the next day. This simple task of setting and monitoring daily goals is amazingly effective at increasing your productivity.
2. Delegate. If you are in a position to delegate make sure to do so. Too often we are saddled with a belief that we are the only person that can do a specific task or do it well enough. Throughout my career I have been particularly afflicted with this mistaken belief. There was a time in my career that I would type all of my own letters even though I had a secretary whose job it was to handle this task for me. I would think, it is going to take me longer to explain to her what needs to go into the letter than it would if I just go ahead and write it myself, which I then proceeded to do.
Learning to delegate is an acquired art form, one everyone should try to master. Believing that a task cannot be delegated is truly more about control issues and less about whether or not it truly can be assigned to someone else. Why spend two hours on a task yourself if instead through crafting 10 minutes of detailed instructions, you can delegate the project to another? Accordingly, if you have someone to whom you can delegate, learn how to delegate and learn how to do it well.
3. Let the Phone Ring. Let E-mails go Unanswered. You’re in the middle of solving an issue relating to one of your goals for the day. The phone rings. You answer. On the other end of the phone is someone who needs to speak with you about something that is important but not related to the task at hand. The conversation only lasts three minutes and then ends. However, when you go to pick up where you left off you need to quickly review where you were, get your brain back on track and then finally pick up and keep moving on the same.
Do not assume that picking up that quick call only cost you three minutes of being off task. It cost you your focus, the three minutes, and ultimately the review time of thinking about where you left off and the time it takes to re-engage your brain on the specific project you were working on before you were interrupted. All in all that three minute call, depending upon the complexity of the issues being dealt with, may cost you six, seven, even 10 minutes!
If your job allows, keep focused. Turn the phone (off?) ringer volume down so as not to disturb you or simply do not answer the same if the caller on the caller id is not calling about an urgent matter. You would be amazed at how simply allowing callers to leave a voice mail and then responding later in the day, in bulk, to all of your messages can truly amplify your efficiency.
However, it doesn’t have to end there. The same policy should be employed in regard to e-mails. How many e-mails do you really get that need to be viewed or read almost instantaneously? So don’t. Let them sit. They’ll still be there when you complete the task at hand. Like your calls just designate a time during the day, or two if you prefer, to answer all of your e-mails. Once again, by not allowing these constant interruptions, the efficiency with which you can accomplish the goals on your list will be increased exponentially.
4. Close the Door. The phone and e-mails are not the only distractions in modern office life. Your co-workers can really drag down your efficiency as well. Back when I worked in a large law firm in Washington, D.C. I would routinely need to go see one of the head partners in his big corner office. Almost without exception every time I walked into his office he would sigh, roll his eyes, and growl “Yes, what is it?” For the first year or so I worked there I simply chalked it up to the fact that he was personality-challenged and sadistically enjoyed degrading others, in other words, a lawyer. But one day I was standing down the hall from his office and it hit me as to why he was consistently grumpy. I was not the only associate that was constantly demanding attention from the big cheese. While I stood there speaking with other lawyers in the hallway I witnessed a veritable conga line of associate attorneys strolling through his office to ask him questions here, decisions there. No wonder he was so upset every time I would come into his office. Although I did not realize it, someone else had been in there two minutes before and again five minutes before that. If the man had seven minutes in a row to think to himself and get his own work done he would consider it a good day.
Why do I mention all of this? If you have the capability, sometimes you just need to close the door. If you work in an open workspace, hang a sign. Open-door policies are great, but they can often lead to an erosion of efficiency that is disturbing. Don’t be afraid to shut the door and politely let people know this is my efficient time. If they need to speak with you they can come back later or, better yet, set up daily pre-scheduled times in which they will have your undivided attention. By moving away from constant interruptions you will be able to stay on task and, consequently, move more efficiently through the goals you set every day.
5. Facebook, Twitter, and Instant Messaging. The secret time killers. Let’s say you spend 10 minutes on Facebook a day. For the majority of us that is being conservative. Let’s further say you use Twitter. Chalk up another 10 minutes. By the way, did you IM any of your friends today while at work? Come on, you know you did. Maybe the wife or the hubby had a funny story to share with you or Madonna just announced her latest concert dates and everyone had to BUZZ each other over it. Another ten minutes. So how much did we spend? Ten minutes? Twenty? Thirty? Wrong. It was more like 130 hours. Over three 40-hour work weeks.
Huh? You might be asking yourself. What you talkin’ about Willis?
It’s simple. If you spend 30 minutes a day on social media and instant messaging that adds up to two and a half hours per week. There are 52 weeks in a year. Fifty-two times two and a half is 130 hours. One hundred and thirty hours equates to over three 40-hour work weeks you are spending on social media and chatting online per year. It’s like a whole other vacation.
Is this overly dramatic? Maybe a little. But recognize what spending time on these sites does to your productivity. Thirty minutes a day, on average, equates to a loss of up to three plus weeks of work per year. So if you are just spending 10 minutes a day doing the same, that’s like one entire lost week of work. Wow.
I’m not saying don’t do it. I am just saying recognize how the numbers add up. Once you see how they do, if you want to ramp up your efficiency limit the social chats to only designated times during the day when you are already taking a break. Trust me, that wicked awesome zinger you’ve been waiting to post on Facebook can wait.
6. Intellischedule. For those of you with spell-checker (yes, I have heard you are out there) this word will not come up anywhere. Why? I coined it. What does it mean? In brief, know thy self, know thy efficiency.
Long ago, I figured out that I am most productive for matters which involve a more detailed thought process in the morning. Matters such as complex legal briefs, legal research, reviewing complex contracts, etc. Afternoons, I prefer to just pound through matters that take a little less thought process but may be far more numerous to deal with such as quick e-mail questions and returning phone calls.
The point is, know when you are most productive in consideration of what you have to do in a given day. Then schedule your goals during those times given your particular strengths or weaknesses throughout the day. Intellischedule.
7. Focus. Do Not Multi-Task. Lastly, we hear a lot about people who can multitask. Who can do three things at once. But there is a growing consensus that multi-tasking actually destroys efficiency. In short, while you are multi-tasking your focus is split between two or more tasks. This erodes the efficiency with which you can accomplish either task. Don’t believe me?
Try this simple test. Find a few things in your schedule you have to do every day. Perhaps it is to get your phone messages at the beginning of the day and check your e-mails to see what needs an immediate response and what can wait. Take note of how long each task normally takes independently. Now do this. Check one e-mail and stop. Check one voice mail and stop. Go back and check the next e-mail and stop. Go back and check the next voice mail and stop and so on and so forth. Which took more time? The time it took to accomplish the two independent tasks by themselves or the time it took to multitask through both of them together. I’d be willing to bet focusing on one at a time was faster.
But this is just an example. By focusing on one thing at a time you will typically be able to accomplish that goal more quickly than if you are multitasking two or three things at once. Focus on an individual goal, accomplish it, and move on to the next goal on your daily list.
The Trademark Company
Wednesday, February 8, 2012
3 Steps to Build Your Business Up by Tearing it Down
As featured on Inc.com.
Judge Smails (aka Ted Knight) once famously
quipped in the iconic Caddyshack, "It's easy to grin when your ship comes in and you've got the stock market beat. But the man worthwhile is the man who can smile when his shorts are too tight in the seat."
There is a great deal of truth in the movies, even in zany comedies, if you really listen to what they have to say.
In the end, Judge Smails was right. It’s easy to sit back, relax, and congratulate yourself on a job well-done when everything is going right. Sales are up? Great. Marketing is driving business to you? Fantastic. Things have never been better. Wonderful. However, when your company’s ship comes in don’t just sit there and take it all in. Sure, enjoy it. But while you are enjoying it it is imperative to take some initiative, prepare for the future, and make your business better by trying to envision ways it could be torn down. In short, prepare for when your pants are too tight in the seat.
Many businesses have now adopted what they call a Legion of Doom: a division within the company that looks for ways to take down the business from within. Those selected then report their findings so that the company may determine what, if any, of the forces could actually manifest themselves realistically thus leading to the demise of the business as they know it. Once this real-life role playing is in effect, it can truly help you to insulate your business by creating systems to address these potential threats well in advance of when they may occur.
Yet you don’t have to be a Fortune 500 company to institute such a plan. Even small to medium-sized businesses can utilize this form of preemptive strike planning. Depending upon the size of your organization, the role of the company slayer can either be played by one individual or teams of persons tasked with various challenges that could possibly bring the company down. Heck, for a little extra fun incentivize the same. For instance, whoever can come up with the most plausible doomsday scenario wins a prize.
Then, when you are ready, use these general guides to begin your quest of taking your company down:
1. Competition – If you were your own best competitor, what would you do to steal all of your business? Dramatic price war? Advertising blitz touting better quality goods or services? Figure out what you, as a business, would be most fearful of your chief competitor doing to drive you out of business.
2. Technology and Infrastructure – What would happen if your primary database got hacked tonight and all of your client lists were stolen? Or perhaps a massive computer virus shuts down your entire network for weeks. Could your phone system suddenly stop working? If you are an Internet-based business what would happen if your web site went down? Suppose your internet host suddenly goes out of business? Also, let’s not forget about the disasters that could occur before the dot com era. What if your building flooded? How about a massive fire that takes out your primary office. What would you do?
3. Wild Cards – Of course let’s not forget about the wild cards. For every business these will differ widely. But how about a rogue employee pilfering trade secret information and passing it on to a competitor. If you rely on venders, what would happen if your primary line of credit or business credit cards were shut down? How about if the bank that you use shut down tomorrow… how would you make payroll? What is your contingency plan of action?
Once you have assembled a list of all the ways your business could be adversely affected by these doomsday scenarios, rank them in order of importance and/or possibility that they could actually occur. Thereafter, set out to address and develop contingency plans for every threat. Along the way you may see better ways to run your business and, most certainly, you will see ways to insulate against disaster.
So take the time to make your company better while its ship is coming in. Make Judge Smails proud and, as the old naval aviator’s saying goes, hope for the best but prepare for the worst.
The Trademark Company
Judge Smails (aka Ted Knight) once famously
quipped in the iconic Caddyshack, "It's easy to grin when your ship comes in and you've got the stock market beat. But the man worthwhile is the man who can smile when his shorts are too tight in the seat."There is a great deal of truth in the movies, even in zany comedies, if you really listen to what they have to say.
In the end, Judge Smails was right. It’s easy to sit back, relax, and congratulate yourself on a job well-done when everything is going right. Sales are up? Great. Marketing is driving business to you? Fantastic. Things have never been better. Wonderful. However, when your company’s ship comes in don’t just sit there and take it all in. Sure, enjoy it. But while you are enjoying it it is imperative to take some initiative, prepare for the future, and make your business better by trying to envision ways it could be torn down. In short, prepare for when your pants are too tight in the seat.
Many businesses have now adopted what they call a Legion of Doom: a division within the company that looks for ways to take down the business from within. Those selected then report their findings so that the company may determine what, if any, of the forces could actually manifest themselves realistically thus leading to the demise of the business as they know it. Once this real-life role playing is in effect, it can truly help you to insulate your business by creating systems to address these potential threats well in advance of when they may occur.
Yet you don’t have to be a Fortune 500 company to institute such a plan. Even small to medium-sized businesses can utilize this form of preemptive strike planning. Depending upon the size of your organization, the role of the company slayer can either be played by one individual or teams of persons tasked with various challenges that could possibly bring the company down. Heck, for a little extra fun incentivize the same. For instance, whoever can come up with the most plausible doomsday scenario wins a prize.
Then, when you are ready, use these general guides to begin your quest of taking your company down:
1. Competition – If you were your own best competitor, what would you do to steal all of your business? Dramatic price war? Advertising blitz touting better quality goods or services? Figure out what you, as a business, would be most fearful of your chief competitor doing to drive you out of business.
2. Technology and Infrastructure – What would happen if your primary database got hacked tonight and all of your client lists were stolen? Or perhaps a massive computer virus shuts down your entire network for weeks. Could your phone system suddenly stop working? If you are an Internet-based business what would happen if your web site went down? Suppose your internet host suddenly goes out of business? Also, let’s not forget about the disasters that could occur before the dot com era. What if your building flooded? How about a massive fire that takes out your primary office. What would you do?
3. Wild Cards – Of course let’s not forget about the wild cards. For every business these will differ widely. But how about a rogue employee pilfering trade secret information and passing it on to a competitor. If you rely on venders, what would happen if your primary line of credit or business credit cards were shut down? How about if the bank that you use shut down tomorrow… how would you make payroll? What is your contingency plan of action?
Once you have assembled a list of all the ways your business could be adversely affected by these doomsday scenarios, rank them in order of importance and/or possibility that they could actually occur. Thereafter, set out to address and develop contingency plans for every threat. Along the way you may see better ways to run your business and, most certainly, you will see ways to insulate against disaster.
So take the time to make your company better while its ship is coming in. Make Judge Smails proud and, as the old naval aviator’s saying goes, hope for the best but prepare for the worst.
The Trademark Company
Tuesday, February 7, 2012
Allowing Others to Use Your Trademarks? Get it in Writing!
Whenever you or your company allows others - such as members, chapters, affiliated entities, or endorsed vendors – to use you or your company’s trademark(s), name, logos, copyrighted works, or other intellectual property, put the terms and conditions of the license in writing.
While oral or implied non-exclusive licenses can exist, they can be difficult to interpret, difficult to enforce, limiting in nature, and otherwise problematic for you or your company.
So be safe rather than sorry. There are many terms that should be included in such an agreement and competent representation can assist you in the drafting of the same. At a minimum, however, an agreement should spell out what can be used, how it is to be used, who owns the trademarks at issue and how long the same can be used or the conditions under which use must cease.
The Trademark Company
While oral or implied non-exclusive licenses can exist, they can be difficult to interpret, difficult to enforce, limiting in nature, and otherwise problematic for you or your company.
So be safe rather than sorry. There are many terms that should be included in such an agreement and competent representation can assist you in the drafting of the same. At a minimum, however, an agreement should spell out what can be used, how it is to be used, who owns the trademarks at issue and how long the same can be used or the conditions under which use must cease.
The Trademark Company
Allowing Others to Use Your Trademarks? Get it in Writing!
Whenever you or your company allows others - such as members, chapters, affiliated entities, or endorsed vendors – to use you or your company’s trademark(s), name, logos, copyrighted works, or other intellectual property, put the terms and conditions of the license in writing.
While oral or implied non-exclusive licenses can exist, they can be difficult to interpret, difficult to enforce, limiting in nature, and otherwise problematic for you or your company.
So be safe rather than sorry. There are many terms that should be included in such an agreement and competent representation can assist you in the drafting of the same. At a minimum, however, an agreement should spell out what can be used, how it is to be used, who owns the trademarks at issue and how long the same can be used or the conditions under which use must cease.
The Trademark Company
While oral or implied non-exclusive licenses can exist, they can be difficult to interpret, difficult to enforce, limiting in nature, and otherwise problematic for you or your company.
So be safe rather than sorry. There are many terms that should be included in such an agreement and competent representation can assist you in the drafting of the same. At a minimum, however, an agreement should spell out what can be used, how it is to be used, who owns the trademarks at issue and how long the same can be used or the conditions under which use must cease.
The Trademark Company
Friday, February 3, 2012
5 Steps to Thinking Outside of the Box
As featured on Inc.com.
A few years back our litigation team was faced with a seemingly insurmountable task: how to defend our client’s trademark rights against a Fortune 500 company with a massive litigation budget. They had the facts on their side. Moreover, they had money. Worst of all, they had a gaggle of lawyers that just made the case down right unpleasant. In spite of this, as luck would have it, they were missing one very crucial thing that they had never learned in law school. Something big firm life had failed to teach them. Quite simply, they were limited in their thinking to that which was rather than that which could be.
Looking beyond conventional defense methods, we deconstructed every element of the case until we discovered a plan to turn the tables. In trademark law priority of use is everything. Whoever is the first to use a specific trademark typically wins an infringement case, especially where the trademarks as well as the goods and services of the parties involved are very similar if not identical. At any rate, the other side had priority of use. The trademarks were very similar. The services were almost identical. We might as well just throw in the towel, right? Wrong!
In thinking beyond the realm of traditional defenses, we wondered what if we could find someone else who had priority of use associated with their own trademark that preceded that of the opposing party? What if we could find this mythical entity and purchase their rights to their trademark, thus acquiring their earlier priority rights as compared to those of our opponent? Could it work?
Well, not only could it, it did. After a brief search we found a small company in a Midwestern state that miraculously had been using the same trademark as our opponent for more than 50 years. They were considering closing their business already when we arrived and bought them out for a fraction of what it would have cost to defend the case in court. After acquiring their trademark rights including the priority of use date prior to that of our opponent’s first use date, that gaggle of lawyers quickly moved from shooting at fish in a barrel to being the fish in the barrel. The case settled within days.
How did we do it? How can you? Sometimes when you are losing in a game you have to stop playing by the rules, switch it up, and change the game itself.
People often speak about thinking outside the box, but how do you really do it? What does it mean to be limited to inside the box as opposed to being outside? The key is to define the box in any given situation and then to seek alternative, often unconventional solutions that would be considered beyond the norm.
When you are faced with a seemingly insurmountable obstacle, train yourself to not merely focus on the specific issue at hand but also think more expansively about all of the reasons and the paths that led to the issue. Consider every possibility and hypothetical alteration of that reality along the path, never being dismissive of anything. When you do this, alternative solutions will often materialize giving you options you did not see when narrowly focusing on a specific issue.
Here are a few tips that we have learned along the way that have aided us in getting outside the box:
1. Identify the issue.
2. Determine whether a regular or typical solution to the problem exists.
3. If one does, you’re done. If no, map out everything that went into creating the issue. In this aspect, be expansive. Include everything possible.
4. Once you start mapping out the issue more completely, start looking for ways to address the situation in one of the more outlying areas that was not considered previously.
5. Never dismiss a possible solution on the basis, “It simply cannot be done.” Consider everything. Go through every possibility until you know for a fact it can or cannot be done.
This is exactly the way we won the case referenced above. If we thought inside the box our thinking would have been:
1. Can we defend on the grounds the trademarks are not similar? No.
2. Can we defend on the grounds the trademarks are used on different goods and/or services? No.
3. Do we have priority of use? No.
In thinking outside the box we began looking at how did the opponent acquire their trademark rights they are now asserting against us? Could we acquire trademark rights that are superior to theirs? We could if there was another company out there using the same trademark as our opponent before they did that would be willing to sell it to our client for a reasonable price. Well, let’s see if we can find one. And we did.
Teach yourself to look at problems more expansively. Never be dismissive of a potential solution before you have thoroughly thought it through. Think outside the proverbial box.
The Trademark Company
A few years back our litigation team was faced with a seemingly insurmountable task: how to defend our client’s trademark rights against a Fortune 500 company with a massive litigation budget. They had the facts on their side. Moreover, they had money. Worst of all, they had a gaggle of lawyers that just made the case down right unpleasant. In spite of this, as luck would have it, they were missing one very crucial thing that they had never learned in law school. Something big firm life had failed to teach them. Quite simply, they were limited in their thinking to that which was rather than that which could be.
Looking beyond conventional defense methods, we deconstructed every element of the case until we discovered a plan to turn the tables. In trademark law priority of use is everything. Whoever is the first to use a specific trademark typically wins an infringement case, especially where the trademarks as well as the goods and services of the parties involved are very similar if not identical. At any rate, the other side had priority of use. The trademarks were very similar. The services were almost identical. We might as well just throw in the towel, right? Wrong!
In thinking beyond the realm of traditional defenses, we wondered what if we could find someone else who had priority of use associated with their own trademark that preceded that of the opposing party? What if we could find this mythical entity and purchase their rights to their trademark, thus acquiring their earlier priority rights as compared to those of our opponent? Could it work?
Well, not only could it, it did. After a brief search we found a small company in a Midwestern state that miraculously had been using the same trademark as our opponent for more than 50 years. They were considering closing their business already when we arrived and bought them out for a fraction of what it would have cost to defend the case in court. After acquiring their trademark rights including the priority of use date prior to that of our opponent’s first use date, that gaggle of lawyers quickly moved from shooting at fish in a barrel to being the fish in the barrel. The case settled within days.
How did we do it? How can you? Sometimes when you are losing in a game you have to stop playing by the rules, switch it up, and change the game itself.
People often speak about thinking outside the box, but how do you really do it? What does it mean to be limited to inside the box as opposed to being outside? The key is to define the box in any given situation and then to seek alternative, often unconventional solutions that would be considered beyond the norm.
When you are faced with a seemingly insurmountable obstacle, train yourself to not merely focus on the specific issue at hand but also think more expansively about all of the reasons and the paths that led to the issue. Consider every possibility and hypothetical alteration of that reality along the path, never being dismissive of anything. When you do this, alternative solutions will often materialize giving you options you did not see when narrowly focusing on a specific issue.
Here are a few tips that we have learned along the way that have aided us in getting outside the box:
1. Identify the issue.
2. Determine whether a regular or typical solution to the problem exists.
3. If one does, you’re done. If no, map out everything that went into creating the issue. In this aspect, be expansive. Include everything possible.
4. Once you start mapping out the issue more completely, start looking for ways to address the situation in one of the more outlying areas that was not considered previously.
5. Never dismiss a possible solution on the basis, “It simply cannot be done.” Consider everything. Go through every possibility until you know for a fact it can or cannot be done.
This is exactly the way we won the case referenced above. If we thought inside the box our thinking would have been:
1. Can we defend on the grounds the trademarks are not similar? No.
2. Can we defend on the grounds the trademarks are used on different goods and/or services? No.
3. Do we have priority of use? No.
In thinking outside the box we began looking at how did the opponent acquire their trademark rights they are now asserting against us? Could we acquire trademark rights that are superior to theirs? We could if there was another company out there using the same trademark as our opponent before they did that would be willing to sell it to our client for a reasonable price. Well, let’s see if we can find one. And we did.
Teach yourself to look at problems more expansively. Never be dismissive of a potential solution before you have thoroughly thought it through. Think outside the proverbial box.
The Trademark Company
Thursday, February 2, 2012
4 Things Every Trademark Owner Should Know About Monitoring Their Trademark(s)
If you are a trademark owner did you know that to maintain rights in your mark you are required to police the use thereof?
Unauthorized use of your mark, also known as infringement, diminishes the distinctiveness of a trademark and, correspondingly, reduces your rights in your trademark by diluting it in the marketplace for relevant consumers.
In short, the more trademarks there are out there that look like your mark, the less likely your trademark will be viewed by consumers as an identifier of the source your goods or services.
Whether you have a Trademark Registration or not here are 4 things every trademark owner should know about Monitoring use others are not infringing thereon:
1. USPTO.gov
The United States Patent and Trademark Office (“USPTO”) maintains a moderately user-friendly web site located at USPTO.gov. There users can search the USPTO’s records of pending and registered trademarks using the Trademark Electronic Search System (“TESS”).
For individuals not trained in the more advanced techniques of searching the USPTO’s databases, use of the “New User Form Search (Basic)” is the most user-friendly. Although it may not bring up all of the results that a “Free Form Search (Advanced)” may (e.g., phonetic equivalents (Coco Cola vs. Koka Kola) or foreign translation equivalents (Red Shoes vs. Zapatos Rojos), it is a nevertheless a great, basic, and cost-effective (i.e., free) manner to monitor filings before the USPTO to make sure others are attempting to register trademarks too similar to yours.
2. Search Engines & Google Alerts
Monitoring your trademark(s) on the USPTO will only pick up a fraction of the trademarks that are actually out there and in use. Many entities and/or individuals never file to register trademarks that they are using with the USPTO. As such, to expand your view of trademarks that are actually in use in commerce you should also examine trademarks in use in cyberspace.
In short, monitoring of your trademarks should include regular checks of the major search engines to make sure others, and in particular your competition, have not adopted or are using trademarks similar to yours. There are far too many search engines out there to mention and repeatedly search them all. However, for the purposes of this article we suggest routine searches of the three biggest in the U.S.: Google (@45% of search traffic in the U.S.); Yahoo! (@21%); and Bing (@12%).
Searching for your trademark(s) using these three search engines may identify others wrongful use of trademarks identical or substantially similar to yours. It is also important to note that monitoring of these search engines should not simply be limited to whether someone else has adopted use of a mark which is identical or similar to yours.
Checks should also be conducted to make sure a search of your trademark(s) do not bring up competitor’s sponsored ads (i.e., pay-per-click advertising) which may indicate that your competitors are bidding on your trademark as a keyword.
Moreover, if a competitor and its dissimilar mark ranks highly in non-sponsored or organic search results when you search for your trademark you should examine their html code for their web site to make sure they have not embedded your mark in their html code so that their site appears in search results when consumers are seeking you out online.
Of note, if you do not wish to spend your days fixated searching the Internet for wrongful use of your marks try Google Alerts. Google Alerts allow you to set alerts, delivered via email as frequently as you choose, for any term or combination of terms when Google’s discovers while performing its routine indexing of pages posted on the Internet. It’s a great low-maintenance tool to monitor use of your mark, or wrongful use thereof, on the Internet. Note, it will not alert you to the pay-per-click or html issues referenced above.
3. RSS Feeds & Twitter
Another way to monitor the use of your trademarks online is to follow RSS feeds of relevant blogs and other information in your industry as well as monitoring the use of your trademarks on social media sites like Twitter.
To do this simply identify the most relevant blogs in your industry and monitor them for use of marks similar to yours by subscribing to RSS feeds for these blogs. Additionally, you can set search terms in Twitter and have the same downloaded to your RSS feed as an extra level of protection.
4. State Trademark and Corporate Databases
One final level of monitoring you may wish to undertake is the monitoring of state trademark and corporate databases for filings of new business names or state trademarks which may infringe upon your rights. The good news is that almost every state has an online portal where you can search for business and state trademark filings for free. The bad news, the state web sites are not linked and to search every state’s databases on a routine basis would be quite time consuming.
There are subscription services which allow for the monitoring of all state databases at once. If that is not feasible for you we suggest periodic searches of those states in which your business maintains its most active presence.
As always, there are companies which offer Trademark Monitoring services. However, if you choose to monitor your marks on your own these tips above will provide you with a great road map to get started.
The Trademark Company
Unauthorized use of your mark, also known as infringement, diminishes the distinctiveness of a trademark and, correspondingly, reduces your rights in your trademark by diluting it in the marketplace for relevant consumers.
In short, the more trademarks there are out there that look like your mark, the less likely your trademark will be viewed by consumers as an identifier of the source your goods or services.
Whether you have a Trademark Registration or not here are 4 things every trademark owner should know about Monitoring use others are not infringing thereon:
1. USPTO.gov
The United States Patent and Trademark Office (“USPTO”) maintains a moderately user-friendly web site located at USPTO.gov. There users can search the USPTO’s records of pending and registered trademarks using the Trademark Electronic Search System (“TESS”).
For individuals not trained in the more advanced techniques of searching the USPTO’s databases, use of the “New User Form Search (Basic)” is the most user-friendly. Although it may not bring up all of the results that a “Free Form Search (Advanced)” may (e.g., phonetic equivalents (Coco Cola vs. Koka Kola) or foreign translation equivalents (Red Shoes vs. Zapatos Rojos), it is a nevertheless a great, basic, and cost-effective (i.e., free) manner to monitor filings before the USPTO to make sure others are attempting to register trademarks too similar to yours.
2. Search Engines & Google Alerts
Monitoring your trademark(s) on the USPTO will only pick up a fraction of the trademarks that are actually out there and in use. Many entities and/or individuals never file to register trademarks that they are using with the USPTO. As such, to expand your view of trademarks that are actually in use in commerce you should also examine trademarks in use in cyberspace.
In short, monitoring of your trademarks should include regular checks of the major search engines to make sure others, and in particular your competition, have not adopted or are using trademarks similar to yours. There are far too many search engines out there to mention and repeatedly search them all. However, for the purposes of this article we suggest routine searches of the three biggest in the U.S.: Google (@45% of search traffic in the U.S.); Yahoo! (@21%); and Bing (@12%).
Searching for your trademark(s) using these three search engines may identify others wrongful use of trademarks identical or substantially similar to yours. It is also important to note that monitoring of these search engines should not simply be limited to whether someone else has adopted use of a mark which is identical or similar to yours.
Checks should also be conducted to make sure a search of your trademark(s) do not bring up competitor’s sponsored ads (i.e., pay-per-click advertising) which may indicate that your competitors are bidding on your trademark as a keyword.
Moreover, if a competitor and its dissimilar mark ranks highly in non-sponsored or organic search results when you search for your trademark you should examine their html code for their web site to make sure they have not embedded your mark in their html code so that their site appears in search results when consumers are seeking you out online.
Of note, if you do not wish to spend your days fixated searching the Internet for wrongful use of your marks try Google Alerts. Google Alerts allow you to set alerts, delivered via email as frequently as you choose, for any term or combination of terms when Google’s discovers while performing its routine indexing of pages posted on the Internet. It’s a great low-maintenance tool to monitor use of your mark, or wrongful use thereof, on the Internet. Note, it will not alert you to the pay-per-click or html issues referenced above.
3. RSS Feeds & Twitter
Another way to monitor the use of your trademarks online is to follow RSS feeds of relevant blogs and other information in your industry as well as monitoring the use of your trademarks on social media sites like Twitter.
To do this simply identify the most relevant blogs in your industry and monitor them for use of marks similar to yours by subscribing to RSS feeds for these blogs. Additionally, you can set search terms in Twitter and have the same downloaded to your RSS feed as an extra level of protection.
4. State Trademark and Corporate Databases
One final level of monitoring you may wish to undertake is the monitoring of state trademark and corporate databases for filings of new business names or state trademarks which may infringe upon your rights. The good news is that almost every state has an online portal where you can search for business and state trademark filings for free. The bad news, the state web sites are not linked and to search every state’s databases on a routine basis would be quite time consuming.
There are subscription services which allow for the monitoring of all state databases at once. If that is not feasible for you we suggest periodic searches of those states in which your business maintains its most active presence.
As always, there are companies which offer Trademark Monitoring services. However, if you choose to monitor your marks on your own these tips above will provide you with a great road map to get started.
The Trademark Company
Wednesday, February 1, 2012
Can a Shoe Color Really Be Trademarked?
As featured on Inc.com.
French shoemaker Christian Louboutin stood before the 2nd Circuit Court of Appeals last Tuesday to present arguments as to why it should retain the exclusive rights to use the color red, specifically “China Red,” to cover the bottoms of its high-heeled shoes.
The dispute first gained a foot-hold in media circles last year when Louboutin sued the French fashion house Yves Saint Laurent for infringement of its trademark design by also producing a line of red-soled shoes similar to Louboutin’s designs. Unfortunately for Louboutin, a lower court in Manhattan decided against Louboutin’s claim of trademark rights in the red soles.
However, undeterred by the agony of defeat, Louboutin appealed the ruling to the 2nd Circuit where the case now awaits a final determination.
In this context, many are now asking can a color be protected as a trademark? Can the design of a bottom of a shoe be protected against infringement?
The answer, absolutely.
Color Trademarks, as they are referred to, are just one of the lesser-known forms of protection which may be used to protect one’s intellectual property under current trademark laws.
There is perhaps no better example of this in recent times then UPS’s attempts to register the color brown in connection with shipping services. In the early 2000s UPS determined that it wanted to lock up the color brown. The U.S. Patent and Trademark Office initially denied their efforts.
Ultimately, it was held that a business can protect a conventional, familiar color as a trademark, but only if it can show substantial evidence of acquired distinctiveness in the color as a trademark. In other words, when consumers see a specific color do they think of your goods or services? That’s why for years UPS has run the ad campaign “What Can Brown do for you?” They are ingraining in the minds of the consumer that when they see the color brown they think about UPS’s shipping services.
So can you protect a color? Definitely. But in order to show the acquired distinctiveness or recognition required to garner a federal registration you have to show consumer recognition of your color with your product. In the end, that will cost you a lot of green.
Trade dress is another form of trademark protection with which many are unfamiliar. Trade dress is a type of trademark that generally protects characteristics of the visual appearance of a product, its packaging, or even the overall look and feel of a business so long as it signifies the source of the product to consumers.
What can be considered trade dress you might ask? Well, let’s look at some examples:
The design of product packaging can be registered as a trademark provided that the packaging identifies the source of the product and is not attempting to be registered to protect some functional element of the packaging (that would be a patent). The best example of this we know of is the shape of the iconic Coca Cola bottle. Everyone recognizes the hour-glass looking design as containing that little slice of heaven from those folks from Atlanta. It is so recognizable that Coca Cola recently began an effort to convert the packaging of their traditional 2 liter bottles to the hour-glass design. Consequently, when you see the design of the traditional Coca Cola bottle and you recognize it as the bottle in which Coca Cola provides its product, that is the perfect example of packaging which functions as trade dress.
Color schemes of restaurants as well as similar features of businesses can also be protected as trade dress under U.S. Trademark Laws. For instance, let’s say you have been operating a uniquely designed or themed restaurant or business for some time and then begin to franchise the same, the color scheme and other elements of your business may be protectable as trade dress.
For example, on the East Coast we have a restaurant franchise that is expanding rapidly called Five Guys. Five Guys offers great burgers and fries. For our purposes today, however, it is important to know that no matter how the restaurants appear on the outside they all have one common theme on inside: red and white checkerboard tile walls. When you walk into the restaurant, even if you did not see the sign on the front of the building telling you that you are in a Five Guys, you know that those red and white checkerboard tiles mean that you are about to have a bacon double cheeseburger with a side of twice-fried french fries like no other. You know you are in a Five Guys. If you know this simply by looking at the color scheme on the walls, this perfectly demonstrates the fundamental point of trade dress protection.
Additionally, drawing upon the above, one of my favorite forms of trade dress protection is the overall appearance of a trademark used in connection with a product or service that also can be protected. This is where trade dress gets a little broad and often difficult to digest. Nevertheless, for our purposes we’ve already discussed color schemes and package designs. The law has also been used to extend to generally recognized images and manners of presentation as well. We think the ongoing story of the Naked Cowboy best illustrates this concept.
For any of you who have been to New York City in the past decade or so there is symbol of America right in Times Square that cannot be missed. The ball that drops every year at the stroke of midnight you may ask? No. The giant billboards and flashing neon and LED screens 30 stories high? Guess again. We are talking about Robert John Burck, aka—the Naked Cowboy.
Since 1997, the chiseled and tanned Naked Cowboy has strolled through Times Square wearing nothing but a pair of white briefs, white boots, matching cowboy hat, guitar and a smile. He sings for tourists and poses for their photographs. Like the U.S. Postal Services’ age-old motto neither rain nor sleet nor dark of night can stop the Naked Cowboy. You can catch him strolling through Times Square during the dog days of summer to the coldest days of winter—all still in his iconic skimpy manner of dress.
A few years back, Mars, the owners of the M&M brand of candies, opened M&M World in Times Square. As the popularity of the Naked Cowboy grew Mars thought it would be a great marketing ploy to parody the Naked Cowboy with a Times Square billboard of one of their M&M characters dressed in white briefs, white boots, the white cowboy hat and white guitar. Well the Naked Cowboy wasn’t down with that tune. He sued. And guess what? He won (or at least won a settlement). In short, his lawyers argued and convinced Mars that the Naked Cowboy’s overall likeness and image was protectable. Accordingly, by posting the billboard, Mars was infringing upon the Naked Cowboy’s trademark—and trade dress—rights.
So as the Naked Cowboy teaches us even the overall appearance of a performer or otherwise can be protected as trade dress if that overall appearance has sufficient recognition value.
Lastly did you know you can protect sounds as trademarks? It’s true. The rumble of a Harley Davidson. The “Bum ….. bum bum bum bum” of Intel. Even the bell tone sound of a plane that Southwest Airlines uses in its commercials. These can all be protected as trademarks provided, as above, the trademark holder can show that in the minds—and in this case ears—of the consuming public, when they hear that specific sound they think of the specific company’s goods or services.
In summary, why do these matter? In protecting your brand identity people are often constrained to thinking about protectable trademarks as being merely a slogan, a logo, or a company’s name. As we see above, a trademark registration can extend to protect a whole host of other things that consumers use to identify the source of a product or service.
So can Louboutin prevail and thus secure an exclusive right to manufacture red-soled high-heel shoes? Yes. Will they? To be continued…
French shoemaker Christian Louboutin stood before the 2nd Circuit Court of Appeals last Tuesday to present arguments as to why it should retain the exclusive rights to use the color red, specifically “China Red,” to cover the bottoms of its high-heeled shoes.
The dispute first gained a foot-hold in media circles last year when Louboutin sued the French fashion house Yves Saint Laurent for infringement of its trademark design by also producing a line of red-soled shoes similar to Louboutin’s designs. Unfortunately for Louboutin, a lower court in Manhattan decided against Louboutin’s claim of trademark rights in the red soles.
However, undeterred by the agony of defeat, Louboutin appealed the ruling to the 2nd Circuit where the case now awaits a final determination.
In this context, many are now asking can a color be protected as a trademark? Can the design of a bottom of a shoe be protected against infringement?
The answer, absolutely.
Color Trademarks, as they are referred to, are just one of the lesser-known forms of protection which may be used to protect one’s intellectual property under current trademark laws.
There is perhaps no better example of this in recent times then UPS’s attempts to register the color brown in connection with shipping services. In the early 2000s UPS determined that it wanted to lock up the color brown. The U.S. Patent and Trademark Office initially denied their efforts.
Ultimately, it was held that a business can protect a conventional, familiar color as a trademark, but only if it can show substantial evidence of acquired distinctiveness in the color as a trademark. In other words, when consumers see a specific color do they think of your goods or services? That’s why for years UPS has run the ad campaign “What Can Brown do for you?” They are ingraining in the minds of the consumer that when they see the color brown they think about UPS’s shipping services.
So can you protect a color? Definitely. But in order to show the acquired distinctiveness or recognition required to garner a federal registration you have to show consumer recognition of your color with your product. In the end, that will cost you a lot of green.
Trade dress is another form of trademark protection with which many are unfamiliar. Trade dress is a type of trademark that generally protects characteristics of the visual appearance of a product, its packaging, or even the overall look and feel of a business so long as it signifies the source of the product to consumers.
What can be considered trade dress you might ask? Well, let’s look at some examples:
The design of product packaging can be registered as a trademark provided that the packaging identifies the source of the product and is not attempting to be registered to protect some functional element of the packaging (that would be a patent). The best example of this we know of is the shape of the iconic Coca Cola bottle. Everyone recognizes the hour-glass looking design as containing that little slice of heaven from those folks from Atlanta. It is so recognizable that Coca Cola recently began an effort to convert the packaging of their traditional 2 liter bottles to the hour-glass design. Consequently, when you see the design of the traditional Coca Cola bottle and you recognize it as the bottle in which Coca Cola provides its product, that is the perfect example of packaging which functions as trade dress.
Color schemes of restaurants as well as similar features of businesses can also be protected as trade dress under U.S. Trademark Laws. For instance, let’s say you have been operating a uniquely designed or themed restaurant or business for some time and then begin to franchise the same, the color scheme and other elements of your business may be protectable as trade dress.
For example, on the East Coast we have a restaurant franchise that is expanding rapidly called Five Guys. Five Guys offers great burgers and fries. For our purposes today, however, it is important to know that no matter how the restaurants appear on the outside they all have one common theme on inside: red and white checkerboard tile walls. When you walk into the restaurant, even if you did not see the sign on the front of the building telling you that you are in a Five Guys, you know that those red and white checkerboard tiles mean that you are about to have a bacon double cheeseburger with a side of twice-fried french fries like no other. You know you are in a Five Guys. If you know this simply by looking at the color scheme on the walls, this perfectly demonstrates the fundamental point of trade dress protection.
Additionally, drawing upon the above, one of my favorite forms of trade dress protection is the overall appearance of a trademark used in connection with a product or service that also can be protected. This is where trade dress gets a little broad and often difficult to digest. Nevertheless, for our purposes we’ve already discussed color schemes and package designs. The law has also been used to extend to generally recognized images and manners of presentation as well. We think the ongoing story of the Naked Cowboy best illustrates this concept.
For any of you who have been to New York City in the past decade or so there is symbol of America right in Times Square that cannot be missed. The ball that drops every year at the stroke of midnight you may ask? No. The giant billboards and flashing neon and LED screens 30 stories high? Guess again. We are talking about Robert John Burck, aka—the Naked Cowboy.
Since 1997, the chiseled and tanned Naked Cowboy has strolled through Times Square wearing nothing but a pair of white briefs, white boots, matching cowboy hat, guitar and a smile. He sings for tourists and poses for their photographs. Like the U.S. Postal Services’ age-old motto neither rain nor sleet nor dark of night can stop the Naked Cowboy. You can catch him strolling through Times Square during the dog days of summer to the coldest days of winter—all still in his iconic skimpy manner of dress.
A few years back, Mars, the owners of the M&M brand of candies, opened M&M World in Times Square. As the popularity of the Naked Cowboy grew Mars thought it would be a great marketing ploy to parody the Naked Cowboy with a Times Square billboard of one of their M&M characters dressed in white briefs, white boots, the white cowboy hat and white guitar. Well the Naked Cowboy wasn’t down with that tune. He sued. And guess what? He won (or at least won a settlement). In short, his lawyers argued and convinced Mars that the Naked Cowboy’s overall likeness and image was protectable. Accordingly, by posting the billboard, Mars was infringing upon the Naked Cowboy’s trademark—and trade dress—rights.
So as the Naked Cowboy teaches us even the overall appearance of a performer or otherwise can be protected as trade dress if that overall appearance has sufficient recognition value.
Lastly did you know you can protect sounds as trademarks? It’s true. The rumble of a Harley Davidson. The “Bum ….. bum bum bum bum” of Intel. Even the bell tone sound of a plane that Southwest Airlines uses in its commercials. These can all be protected as trademarks provided, as above, the trademark holder can show that in the minds—and in this case ears—of the consuming public, when they hear that specific sound they think of the specific company’s goods or services.
In summary, why do these matter? In protecting your brand identity people are often constrained to thinking about protectable trademarks as being merely a slogan, a logo, or a company’s name. As we see above, a trademark registration can extend to protect a whole host of other things that consumers use to identify the source of a product or service.
So can Louboutin prevail and thus secure an exclusive right to manufacture red-soled high-heel shoes? Yes. Will they? To be continued…
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