Kent J. Schmidt

Transcript

Voiceover

Welcome to another episode of the SharkCast on litigation risks management, where we explore why businesses are so frequently sued, and how to mitigate and navigate the dangers lurking in these risky waters. Join us now as we welcome our host Kent Schmidt, Litigation Partner at the law firm of Dorsey & Whitney.

Schmidt

Thanks for joining us today on SharkCast. I’m pleased to be joined in this episode of SharkCast by Sarah Robertson and Breanne Wernars. One of the things that makes life full and interesting is meeting new friends while also maintaining friendships with those you have known for decades. And such is the case with SharkCast, including today. I’ve known and worked with Sarah Robertson for many years, and Breanne Wernars and I have only known each other a short time. But I want to welcome you both, friends, both new and longstanding to this episode of SharkCast, glad that you’re here.

Wernars

Thank you, excited to be here.

Robertson

Yeah, thank you, Kent, we’re excited to be here.

Schmidt

Sarah and Breanne both have practices that include trademark advice. Sarah is based in our New York office of Dorsey, and Breanne is based out of our Denver office. I thought it would be a good idea to gather the two of these friends to talk about trademark protection. Now there’s a fair amount of trademark litigation, including in the news, and we see these claims being discussed on a regular basis. We know enough to know that trademark litigation is a real litigation risk, but let’s dig into some of the details of this area of law, which I think illustrates perhaps as best as any type of litigation risk, the oft-repeated adage that an ounce of prevention is worth a pound of cure. That certainly is the case when it comes to trademark protection, and avoiding trademark litigation, isn’t it?

Robertson

Yes it is Kent, and our observation over the years is that brand names are often based on emotions, similar to naming your first or second child, and that from inception there’s not always forethought into trademarks as being an important business asset, and consideration of mundane things like availability, or inherent strength, which are some concepts that we’ll get into a bit later during this podcast. But the treating a trademark as an important business asset can really go a long way to mitigating risk, and to building a strong brand and business asset.

Schmidt

Well I just finished an audio book of Elon Musk, the new autobiography by Walter Isaacson. I just finished it yesterday, so of course fresh on my mind when we’re talking about trademark protection and what you say these instinctive, perhaps even emotional decisions to name something is of course Elon Musk’s recent renaming of Twitter to the name X, and we see that in the news. Do you have any comments on that litigation that is going on right now?

Wernars

As a little background, Elon Musk obviously is trying to rebrand Twitter to X. The registry is a little bit cluttered, so there’s people now trying to trademark Twitter because they claim it’s abandoned. So it’s a really interesting kind of host of different questions going on, but it’ll be interesting to see how it comes out. We have a trademark blog, which I’ll do a little plug for called The TMCA, which has a really good, in-depth post about this, if anyone’s interested in learning more.

Schmidt

And I’m sure they’ll be more posts on this as the story unfolds, as they say on the news. So today I’d like to focus on some more fundamental concepts, those are some high-stakes litigation, but let’s start with some pretty basic concepts of trademark protection, what we would call the basic blocking and tackling of both U.S. and international trademark protection. Sarah, let’s start with you since you have a few decades of experience in this area. Based on your experience in trademark work, what is the best guiding principal that you have for companies regarding their approach to trademark?

Robertson

I think my best guiding principal is to give some thought and make some investment in trademarks from the outset. As I mentioned before, sometimes brand names are picked emotionally, and they are also often picked at a time when a business is just getting off the ground and growing. And for budgetary or other reasons, brands are often pushed to the side in terms of an investment to ensure that they are available for use given the existing business landscape out there that they are not the same or confusingly similar to somebody else’s brand. And two, that they have appropriate inherit strength so that you have a strong brand to build upon. And we’ll get into that a bit later more. But thinking about and putting some time and investment to clearing a brand and making a good selection from the outset can go a long way later.

Schmidt

Speaking of basics, before we get too far into this, let’s make sure we level set with respect to what trademarks are. I guess that’s perhaps the most basic question of them all. So, Breanne, why don’t we begin with you to make sure our listeners have a general understanding of what is encompassed.

Wernars

Yeah, I think that’s a great place to start. So I think most people think of a trademark sort of as a word or a slogan or maybe a design element. And it can be a lot more. You most commonly see them as that kind of thing. But, broadly, a trademark is one of those things, and it acts as a source identifier for a good or service. And then it’s a way to kind of differentiate yourself from your competition. So, this has this mark on it, I know it must come from this company, this group. So examples; there’s a classic wordmark, like we’ve talked about, Twitter is a wordmark for social media services and the Twitter bird would be like a design mark which also would serve the same function. You can have sounds that are trademarked, which I think is interesting. So, the NBC chimes, McDonald’s I’m lovin’ it, the ice-cream truck jingle that everyone knows is trademarked. You can have colors that are trademarked. So UPS’s shade of brown. Another carrier couldn’t use that shade of brown. Barbie pink, which is a hot topic this year, everyone loves Barbie. And then lastly is smells. So Playdough was one I thought was pretty interesting. Everyone would know Playdough when they smell it. It’s been deemed to be such a source identifier that it’s trademarked. So those are kind of the main ones that are available. There’s also one called trade dress, which is a little bit more complicated. So it’s the overall kind of image, appearance, look, feel of a product or service. So it could be like the shape of a product. The Goldfish cracker is trade dressed. Distinct part of a product. So the red tab on Levis jeans. Or the look and feel of a store, so the Apple store, right, has a very distinct you know when you’re in an Apple store. So there’s different considerations of those. Some are harder to register or protect than others, but that’s kind of the overall basics I guess, at this point.

Schmidt

What about things that we might instinctively think are trademarks, or adjacent to trademarks, that have been ruled to be not trademarks? So maybe define just a little more in a negative way for us.

Wernars

Yeah, sure. So I think for those who may be or not IP people, there’s synonymously people will just use patents, trademarks, copyrights kind of interchangeable, and they’re pretty distinct areas of law. So something with utility or an invention would be a patent, it wouldn’t be protectable as a trademark. There’s a way that leads into trade dress where the USPTO will reject your application if something has function. Right? They’ll say no, that should be patented instead of trademarked. Then a lot of creative works, so your song, your movie, your books, your artwork. There’s some overlap, but again, that would fall more under copyright registration, and Sarah may have some more specific examples she’s seen, things maybe she’s tried to get through and hasn’t been able to.

Schmidt

Right. Well, that’s a good idea. Sarah, let’s draw on your experience in the trenches in trademark protections. Do you have any examples of attempts to try to trademark something or, perhaps the opposite, that someone assumed that something was not subject to trademark protection, and they really should have taken steps?

Robertson

Yeah, sure Kent. So, just for, in terms of your first question and to pick up on what Breanne was referring to, so certain types of aspects of your business, including product shapes can have source-identifying significance. It can function as brands, as trademarks, and be valuable brands and trademarks, but you generally have to fight to get that protection. The battle is establishing that the consuming public actually associates that shape or color or store layout with you as a business, that you are the source of it, and that can be established in a number of ways. But we’ve seen lengthy submissions, for example by Apple, about its store layouts or its product shape referring to things like sales volume, advertising levels, surveys of consumers, so certain types of protection can be gained, but you really need to prove that the public views these product aspects as having trademark significance. To answer your second question, I think there are many types of trademarks that are overlooked by businesses. Slogans is one that comes up. I think they are often descriptive and/or viewed as non-trademarks. So the risk attached to that is that they are often not searched or cleared, and so can become the subject of a trademark claim. But, the other aspect of them is they can really gain a lot of traction with the public and have longevity where they become valuable assets, and so giving some attention to them and protecting them in appropriate ways is important. So those are a couple of examples.

Schmidt

So it sounds like one mistake that many companies make in this area is getting trademark protection or something that is just their basic trademark, but not realizing that there are opportunities to gain trademark protection for all sorts of other things far as beyond that. Well, with that let’s turn to some pragmatic steps appropriate to consider in the formative stage of a company or brand new venture. How should a U.S. business approach deciding how they’re going to obtain trademark protection?

Wernars

Yeah so, Sarah touched on it a little bit in the, one of your prior questions about how we kind of have two buckets of strength, per se, for a trademark. There’s the inherit strength and then the relative strength. So, inherit strength, we’re referring to the, and I’m speaking more so about word marks in this scenario, the strength of the words themselves. So on one end of the spectrum you have generic marks. This is like me calling my banana brand bananas. That’s the word for it, so it wouldn’t be fair to allow me to trademark bananas for bananas. You’re stifling competition. Other banana growers should be able to use the word bananas to describe their product. This is not protectable, a generic word. An example in real life of this is aspirin, was once a trademark, is now generic. I don’t even know the medical term behind aspirin. I just know it as aspirin. And then you have a little bit farther down the spectrum. You have what are called descriptive marks, which are sometime protectable. Sarah talked a little bit about showing that consumers recognize it as a source-identifier. So something like hot and spicy for hot sauce would be descriptive. It’s not the word for hot sauce, but it’s describing hot sauce. Again, these can be difficult to register unless you’re able to show all those things Sarah talked about earlier. An example of this is Holiday Inn. It’s an inn you go to on holidays, but they’ve been able to show that people know Holiday Inn as a brand. They don’t think of it as describing hotels more generally. And then you have kind of the middle of the spectrum. This is where you get to the USPTO would register a suggestive mark is what it’s called, and this is , there’s kind of some amount of thought that needs to go into it. So it’s not outright describing something, but there’s a short jump figuring out what the product is. Netflix is an example of this, right, the internet and movies, “flix”. You know, registerable marks because it’s not outright describing it. There’s some creativity there. Another example is Coppertone. You use it and you get a copper tone to your skin. The second strongest type is arbitrary marks. So this is when you use a real word, but something that isn’t at all related to that word. The best example that we’ve been using is Apple. Right? It’s a real word, but computers has nothing to do with computers. This can be a powerful tool for creating distinctions between yourself and other brands. And then finally, for inherit strengths the strongest type is fanciful marks. And this is a completely made up word. So an example of this is Kodak, Adidas. It’s a completely made up word that someone invented. Although, I guess other people could’ve invented it at the same time. That’d be bad luck, but could happen. These are the strongest because I’m using a mark I invented. The likelihood of another using this mark or being confused is relatively lower ‘cause it came from my imagination. That’s kind of the spectrum in inherit, and then we’ll talk about the relative strengths.

Robertson

Just pulling back from what Breanne said, thinking about whether your mark has any meaning for your business at the outset can be helpful in building a strong brand. If it has little to no meaning, it can be a stronger brand out of the gate. If it has some meaning for what you’re doing, it’s possible to build up strength, but it may take more effort and time to do that.

Schmidt

So, a lot of strategy and thought goes into selecting the mark because that’s going to determine your legal protections going forward. I imagine that this involves a lot of discussion with the creative folks, the marketing folks to sort of get their feel, try things on, and then see how strong it would be right out of the gate. Is that a fair statement?

Robertson

Yeah, that’s a fair statement. Just in terms of a risk analysis, if your mark has some descriptive aspects to it, it can increase the likelihood of third parties bumping up against you, and by that I mean complaining about your mark or obligating you to pursue other marks that are similar. So it can increase litigation risks and it can also increase enforcement costs. And I think these aspects could be more closely considered from inception. I think this is an issue that isn’t given enough thought sometimes when marks are selected.

Schmidt

So let’s move to the next step in the process, now that we have our brand. What is the next step in the process?

Wernars

Next step would be clearance searching your mark. So if you have what you think is a strong mark, right, we just talked about, I made up a word for a mark. Sometimes good minds think alike, unfortunately. There’s a chance Kent had thought of the exact same mark and is using it for the exact same goods. The chances are lower, which is why it’s great to have an inherently strong mark, but it’s not possible. So we do clearance searching to kind of see what’s out there in the field, and this is where the relative strength of the mark would come in. If there’s a lot of people using this mark, we would identify that as an infringement risk. We would look at the registry. Do you have a chance of getting this registered or is there someone blocking it? What are possible avenues, you should consider a new mark, that type of thing. There’s two degrees sort of clearance searching. Preliminary searching, which is something that most people would do in house, and it’s looking through the internet, it’s looking through trademark registries, which someone could do on but again there is a lot of nuances, things you maybe wouldn’t consider similar right off the bat. But as practitioners, we would know actually the PTO considers those goods or services similar. You’re gonna have a hard time registering it. And then there’s full clearance searching, which we would use and outside business who uses their high-tech computers and scours the internet and scours the registry and gives you back hundreds of hits normally, and then we would go through and pick through it. But a good tool to kind of assess fully what’s out there so you know before you’re investing all this time and money in a brand when maybe someone else is already using it and you have a high risk of getting a claim filed against you, or a cease and assist letter, what have you. So there’s some benefits as well, legal benefits to these full clearance searches that I think Sarah can talk about a bit more. But it’s a good way to have peace of mind before you’re launching into advertising your brand to the world, spending all this money when there could be risks out there you haven’t identified.

Schmidt

And it sounds like one of the things you’re doing here is not just doing your due diligence, but you’re laying the groundwork in the event that there is either offensive or defensive trademark litigation down the road. Sarah, can you talk just a little bit about how clearance opinions can be used in litigation and trademark litigation perhaps years later?

Robertson

Yes, and I will, just to pick up on what Breanne was talking about, the litmus test in the trademark world is likelihood of confusion, and that is what the standard is for an infringement claim and other types, as well as trademark office refusals. And so when these trademark clearance searches are run, we are giving and assessment of risk level with a view to the likelihood of confusion standard. And so at the end of a full search we can give a client, effectively peg the risk level and attached from a likelihood of confusion matter about their ability to go forward. And we can also comment on things like inherit strengths as well. Sometimes industry meaning for unique specialized meaning come to light in a search as well. That is the assessment that comes out of conducting a full search. The primary benefit to a client to getting outside council to commission a full search and render an opinion is that it can help insulate a client against a allegation and also the heightened damages associated with a intentional infringement claim. That is a deliberate riding on the coat tails of somebody else trying to benefit from their established goodwill. And so a legal opinion can have that helpful benefit later to show that you adopted the mark in good faith without a view of copying somebody else. So that’s an important benefit. And in the grand scheme of things, a relatively low cost to one, get the opinion of counsel in an accurate snapshot, and two, to help, again, so in the event of a later dispute.

Schmidt

Well that resonates with me. Listeners of this podcast here again and again, take steps now, think about litigation that might be down the road. So a word of caution and a word of preventive medicine is always a good way to approach these things. Let’s turn to the next step in the process. We talked about selecting the brand, we’ve talked about doing a lot of searches, different levels of searches, obtaining opinion, but the third step in the process as I understand it is the registration decision. When should companies or a brand owner consider registering a mark, and what are the advantages to doing so?

Robertson

So, there are several benefits to applying to register, and Breanne and I will touch on some of them in the interest of time. But I will talk about, and Breanne will cover some of the legal presumptions, but applying to register as a procedural matter enters your mark as part of a public database that can be visible to the public and visible in trademark searches. So it can be a helpful way to put people on notice of your claim of rights to a particular brand and can deter others from selecting something the same or similar in the future. And so the public notice aspects shouldn’t be discounted. As a technical matter, trademark applications can be filed before the mark is put into use or commercialized applied to a product. And it can help create certain rights that date back to the filing date of the application versus the date of actual use. In a more simpler way, it can give you a bit of a leg up by getting your mark on file for that reason as a legal matter.

Wernars

To sort of piggyback off your last point there, Sarah, I think it’s a good point as to why just simply Google searching is often not enough. You can file these trademark registrations on an intent to use basis, and these applicants have rights in this mark. It’s not gonna show up on Google, they’re not using it. You’d have to search the registry to find these. So I think that’s just a nuanced point to bring up that relates back to our last question. But in terms of federal registrations, in a legal proceeding, it’s evidence of your ownership in the mark. So having this trademark registration, you don’t have to prove it in a way you would with a common law trademark claim. So I own this mark, here’s how I’ve been using it, I’ve been using it in these places, it’s just prima facie evidence that you own this mark, which can be really helpful, save a lot of time, save a lot of legal cost and whatnot. So that’s one of, a huge benefit. So legal presumption to kind of make proving your rights easier.

Robertson

You know, registration is optional, but when you don’t register, Breanne referred to common law, and that just means an unregistered mark. In the case of an unregistered mark, your rights are just, extend to where you have been commercializing it. And in the event of a dispute or litigation you need to really prove through stale of invoices or other forms of proof, just how far geographically your trademark rights reach. And so a federal trademark application can help short circuit some of that.

Schmidt

As a trial lawyer, I’m thinking one or two exhibits at trial versus experts and a whole stack of evidentiary exhibits that are gonna be offered. So it’s music to my ears in terms of putting on a case. Well, let’s move this conversation to an international context. We’ve been talking about trademark protection with the assumption that it’s a U.S. company with business in the U.S. But often, of course, that is not the case in our shrinking world. What are some of the considerations for brand owners in seeking to expand outside the U.S. and ensure that they’re not caught flat-footed in the trademark area?

Robertson

Yeah, it’s an important question, Kent, and you know, the basic concept which often gets forgotten or lost is that trademark rights, brand, rights to brands are territorial in nature. And so if you have an established brand in the U.S., it doesn’t necessarily mean that you have rights to the brands in other countries or jurisdictions. And so international securing of rights and expansion considerations are important to think about at the outset as well. This can involve, generally, applying to register not only in the U.S. but in other key countries or jurisdictions where expansion is likely. We see more often that we would like to, foreign individuals or entities monitoring the U.S. register and filing applications abroad in countries such as China to gain rights ahead of the real mark owner in the hopes of securing your payment or receiving other benefit to being an impediment to a business seeking to legitimately protect their rights in that country. One concept I’ll mention, which is also important, is that certain countries are what we call first to use countries. The business that is out there first in the market is the one that gains rights. Other countries are what we call first to file countries. Many Asian countries are first to file, for example. And so that means it’s really a race to the register, and if somebody gets on file ahead of you it can create real impediments. So giving thought to international filings and expansion early on can really help avoid conflict later. And we’ve seen the issue come up, including places as close as Canada, where there’s been big PR splashes, strong brands that assume that the path would be clear for them in other countries, that there’s public announcements about their intent to enter a country, and then finding that there’s a conflict from either a good faith adopter of the mark or a bad faith one that they have to navigate in order to follow through on their launch plans, which can be both expensive and can lead to litigation.

Schmidt

So it sounds like a common theme is emerging here. The word to the wise is down the road, think down the road to future trademark litigation, and also think down the road with respect to whether you’re gonna be going international, what markets you may be going into shortly that you need to think ahead and take action.

Robertson

Businesses shouldn’t assume just because they have their U.S. rights shored up that this will open the door to them in other countries, I think is the takeaway there.

Schmidt

What are the things that brand owners should think about to affirmatively protect their trademarks on a going forward basis?

Robertson

There’s a number of ways they can do that, and Breanna and I will touch on some of those. Policing both the trademark register for new applications, and new marketplace uses can be very effective in maintaining strong rights and ensuring that confusingly similar marks don’t emerge in your field. And there are a few ways to go about doing that, practically. Breanne, do you want to mention a few of them for our audience?

Wernars

Yeah, sure. So watch services is the number one thing I would say we recommend whatever mark you set up to be watched. You can do it globally to see, like Sarah said, if a squatter has filed for your exact mark in a different jurisdiction. You can get in there within the opposition period or monitor it to see if it becomes published, that kind of a thing. And I think it’s important because some jurisdictions in the U.S., you file an application and it’s examined in relation to third-party marks that exist on the registry. Other jurisdictions just do it based on the inherent registerability. They don’t look at the third-party marks. So it would be hard to know if other people are filing these marks if you’re not getting alerted to that fact by offices because they’re not looking for it. So it’s a really good tool, and I would say a relatively inexpensive way to make sure you know what’s going on in relation to your marks all around the world in jurisdictions maybe you want to expand into. It can give insight into whether that’s gonna be difficult, whether there’s people claiming to be you out there that you just wouldn’t know of. So that’s one way. And then we also do that as well with domains. So, you know, we see phishing schemes more often than we’d like, and you can set up watches for domain names to see if someone’s using it as a way to sell services or goods, or they’re using it as emails, right? It’s a dead website, so that’s another really helpful tool that I’ve seen and can help just kind of give peace of mind, while also proactively taking some action.

Schmidt

So what I’m taking from all of this is that a company can engage in all the right steps and processes at the outset, but thereafter, through oversight and neglect can really work itself into a very undesirable position on trademark protection. Is that is that a fair statement?

Robertson

Yes, that’s absolutely right. And so beyond the efforts and attention given in selecting a brand, clearing a brand and hopefully registering a brand, actively protecting that brand throughout its life cycle is also a very important step in terms of maintaining brand value. And I think one thing we want to mention, which I always think is a helpful visual, is that when you select and adopt a mark, we often have the visual of sort of drawing a circle in the sand, and ideally you draw that circle as broadly as you can, and there should be, the value of your asset should ideally increase the larger that circle is. But the enforcement activities help to keep others from encroaching on your circle and keep it your boundary as broad as possible. That’s a helpful analogy.

Schmidt

So in my experience, one of the first indications that a company has a trademark issue is when they receive a demand letter. Sometimes it’s a legitimate letter from someone that’s actually using the mark, and sometimes it’s a bit of a shakedown, and one never knows perhaps at the beginning how serious this is. Do you have any practical thoughts on an approach to dealing with demand letters involving trademark allegations?

Robertson

When a demand letter comes in, and we never like to see them come in, but that the, a full search at the outset can actually give you confidence in responding to that demand letter because you have a sense, one, ideally you’d already know about this third party that comes under the woodwork, and two, it would give you a sense of their overall legitimacy or validity of the arguments that they’re making, given what you saw in a full search, and, for example, they may be overly aggressive or overreaching, they may be already coexisting with other marks. So, that a search can help a lot with responding to a demand letter. In an ideal world, the third party that emerges isn’t a surprise to you, because you’ve already canvassed the landscape. So that can be a tool in responding into demand letters. So we do assess those for validity of the arguments, knowing that some third parties do try to overreach in terms of what they should otherwise be entitled to by way of trademark rights.

Schmidt

Well, that’s about all the time we have to discuss trademarks and strategies and trademark protection. We’re now at the point in our show that we like to learn a bit more about our guests as individuals. So I’d like to ask you both the question of hobbies and skills. What skill or hobby do you think it would be enjoyable to learn in the long range, say in the next 5 to 10 years, if you can carve out some spare time to tackle learning something new or engaging in a new hobby just for the sheer joy of taking on the challenge?

Wernars

Yeah, I can go first. I have had a guitar in my bedroom for, I don’t want to say how many years, and I still have not learned how to play it. So I would like to put that to use and make it, you know, a better investment than it currently is sitting in the corner of my bedroom. But I would say I’d really like to learn the guitar. It seems like maybe an achievable thing if I actually set my mind to it, so I’ll go with that.

Schmidt

Well, Breanne, I’ll make a note to check with you in a year or two to see if….

Wernars

Oh no.

Schmidt

…you’ve started doing that, then.

Wernars

Okay.

Schmidt

How about you, Sarah? Is it musical or something else?

Robertson

Well, this may be sort of a boring answer, but it’s a, it’s a, it’s a legitimate one, and part of it is motivated by trying to keep up with my 10-year-old daughter. But I think as new media emerges and the way that contents consume, it’s not only impacting how Breanne and I are running our practices in the ways that our clients are attaching their brands to new and evolving online ways, but I think the way in which we consume our entertainment and content online is sort of fascinating to me and I’m trying to keep up with it. This is anything from AI to the amazing success of online disseminators of content on social media platforms. I find it very fascinating and I’m consuming content that way personally, but also find it very interesting in terms of how our clients are marketing and establishing a presence out there in the world.

Schmidt

Well, you’re exactly right, Sarah. Just keeping abreast of the phenomenal changes taking place in technology could be a full time job, and it’s a, it’s a challenge to maintain your practice and your other responsibilities and know exactly what’s going on and what would be beneficial to be able to use. So I, it definitely, that resonates with. Well, that’s about all the time we have for today. Thanks both for being here. Turning back to the topic of trademarks, what’s the one takeaway each of you would like to leave with our listeners?

Robertson

So how a company treats its intellectual property and observes the limits of other’s rights in brand adoption has a direct impact on the likelihood and outcome of litigation.

Wernars

Enforcing and protecting your trademarks is only getting more important in today’s digital age because everyone knows what everyone else is doing in a way which wasn’t true 15 to 20 years ago.

Schmidt

Thank you both for being here. I’ve enjoyed this discussion and I’m sure it’s gonna be useful to our listeners. That’s all the time we have for today. Thank you for listening. I’m indebted, as always, to the extraordinary team at Dorsey for making this podcast and episode possible. For more resources on this and other litigation risk, go to litigationrisk.com where more information can be found including a book on managing litigation risk written by yours truly. Until next time my friends, this is yet another reminder that there are a lot of sharks swimming out there in the murky waters, so swim safely.

Voiceover

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