How’s This For Educational Drama?
Get this. A friend emails me. Says, “Hey, do you know about this? There’s a new business that sounds nearly identical to yours.” Sure enough, the service and the target audience was a straight knock-off of Art of Hustle®. Heck, the owner was even an Asian American guy and a creative from San Francisco! (Normally not a big deal but, folks, we’re a small community of cultural workers here in the Bay Area. Come on, dude. Stop it.)
Some might wonder: Geez, can’t there be more than one professional development provider or business coach or consultant? Of course, there can. There should be! And there are already thousands. The more, the merrier, really. What I couldn’t get over was the sheer similarity in name. Without giving it away, let’s say that it was akin to starting a tech company called “Apple Wares,” developing a line of laptops and phones, and then thinking that it would not be a big deal or that no one would notice. Next, an author will try using the pen name, “Malcolm Glad Wellstone.” How about a music group called “The Black Eyed P’s and Q’s”?
The point of developing a brand is to create a unique voice and style, and over time, connect all those pieces, products, and services into a cohesive identity that people (your audience) can learn to depend on. Trademark laws exist specifically to protect against what is commonly referred to as consumer confusion*. This is true whether you’re a performer, a coffee shop, or a t-shirt printer. Luckily, this beef of mine happened a couple years ago and has since resolved. No need to assume wicked intent (I’m hoping anyway). Turned out to be nothing that a cordial, albeit tense, email dialogue couldn’t smooth out.
Trademark infringement is measured by the multi-factor “likelihood of confusion” test. That is, a new mark will infringe on an existing trademark if the new mark is so similar to the original that consumers are likely to confuse the two marks, and mistakenly purchase from the wrong company.(source: wikipedia)
This was a growing-up experience I couldn’t wish for but that I was fortunate to have. It was a tiny fiasco that led me to officially registering my trademark. Here are some top tips that I learned that I would like to pass on to you!
Disclaimer: You know I’m not an attorney, right? Because… I’m not. So, this isn’t legal advice. This is homie advice. Please seek out a properly qualified professional, as I did, to help you in any trademark, patent, or other intellectual property matters.
Apply for your trademark when you’re ready to commit to your name.
I’ve started lots of companies — in my mind anyway. None of them counted though because they were sort of throw-away projects that I was okay retiring after limited use. However, when you see yourself settling into something that you will invest major time, energy, and resources toward building, it may be a signal to start thinking more broadly, nationally and legally. It won’t make you bulletproof, but trademark registration does provide a significant layer of protection that puts colonizers, copycats, and biters on notice.
Do your research. Is your name already taken?
The aforementioned static may have altogether been avoided had my competitor (I mean that in the business sense, not in the Marvel arch-rival sense) simply done some Googling. A basic query would have shown that someone — me — was already occupying this name as a fully-running and San Francisco registered business. Also, merely adding a prefix or suffix to an existing trademark isn’t going to be sufficient differentiation. See above Jimmy Fallon GIF.
Can you trademark anything?
You can trademark all sorts of words, phrases, and symbols, although you have to apply for their registration in particular categories (e.g. business types) and you must demonstrate usage as such. For example, if a general contractor wanted to start a company called “Art of Hustle,” he or she might actually be able to do so because we perform our services in different fields. I might try to lock down the name in the construction category but I would have to show that I’ve also been operating in that capacity. Makes sense. This prevents people from scooping up trademark registrations and sitting on them for no reason.
First steps for small and micro-businesses.
As I mentioned, it helps to be able to prove the use of a name. So register your business in your county or state, keep records of your business transactions, things like that. In my case, it was also beneficial that I had blog posts dating as far back as 2010 and that my website remained an active space. Who’da thought? My ramblings on artist survival, best practices in marketing, business tips, and my major dissatisfaction with certain parts of nonprofit culture helped me make a clearer case to own Art of Hustle®. Next to that, I also purchased all the major URL types: the dot net, the dot biz, etc., etc. This isn’t a legal measure but it is a simple and cost-effective action to further claim your space. In recent news, in fact, pop singer Taylor Swift made a very smart defensive maneuver in buying up uninhabited but newly available pornography URLs that bore her name. Lastly, as I mentioned at the top, seek out a properly qualified professional to help you — not just legalzoom.com or what have you. Having gone through the long process myself (it took two years), I can tell you there are lots of T’s that need crossing and I’s that need dotting that an automated online application may not be able to do justice.
The Result? Ta-Daaaa!
Yes. National registration. And the right to use the registered trademark symbol (that encircled capital R), now to be plastered everywhere possible, on my website and all other promotional materials. Happy to have received this notification from the legal experts working on my behalf, just last week!
Thank you for joining me in celebrating this recent milestone. I hope you find the information I’ve shared with you in this blog post to be useful.
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