Law Talk Episode 14: Trademark Law

In this episode of Law Talk, Jacob and Andrew discuss the ins-and-outs of U.S. Trademark Law!


Andrew Michael: All right, and we are live.

Jacob Tingen: We’re live.

Andrew Michael: We are. It is Wednesday again, 11:00. I’m super excited today because we’re talking about trademarks, which I have been reading a silly amount on recently.

Jacob Tingen: Oh, good.

Andrew Michael: So super pumped for that. How you doing today? You doing …

Jacob Tingen: Good, man.

Andrew Michael: Yeah?

Jacob Tingen: Yeah. Trademark was my first intended practice area. It was my first on purpose practice area as a lawyer.

Andrew Michael: You have a book on trademarks too, right, on Amazon?

Jacob Tingen: Yeah, so that’s how I got started. When I started my practice before I fell into a lot of immigration, I thought I would do trademark law. So the first step that I took was to write a quick guide about how to register your federal trademarks. Now I’m literally, I wrote the book on how to register your federal trademark.

Jacob Tingen: It is published on Amazon. I think it’s for 2.99, and so anyway, you can go check it out at Amazon. It’s a pretty good primer on the issue, and so if you have any questions about trademark, I think it has good reviews for once upon a time. I mean, occasionally I’ll check, and it’s the number four book on intellectual property on Amazon. Sometimes it’s number eight. I don’t know how they …

Andrew Michael: It varies. Yeah.

Jacob Tingen: Yeah. Their algorithm does whatever, but yeah, it’s on there, How to Register Your Federal Trademark, by Jacob Tingen.

Andrew Michael: Cool. I guess here today on Law Talk we will give a brief overview to trademark law, specifically how it relates to small businesses.

Jacob Tingen: Okay.

Andrew Michael: Because generally, especially for Virginia, Richmond, small businesses are really who we’re mostly targeting with trademark law just because they may not have a whole legal team sitting in the basement doing trademark registration and all that kind of stuff.

Jacob Tingen: Right.

Andrew Michael: Most of what we’re talking about today will be an overview of trademark law in general, who it applies to, how it works, what it covers, all of that sort of stuff. Do you want to just start with what is a trademark just generally speaking? Because most people know that it’s a way of protecting your intellectual property, but there’s a few specifics about it that I think we could probably expand on there.

Jacob Tingen: Okay, yeah. The question is, what is a trademark generally? Just kind of …

Andrew Michael: Yeah. Just what is, brief overview.

Jacob Tingen: Yeah. Trademark is different from the other two kinds of intellectual property that people are familiar with. There’s copyright and patents, and what’s interesting is that copyrights and patents are explicitly provided for in the Constitution, whereas trademark rights spawn out of commerce, interstate commerce.

Jacob Tingen: Trademark rights are the idea that you have a brand, that there’s a value associated with that brand, and that’s what a trademark is. I think anciently the first trademark was some dude who was writing some kind of script on pots, and so people knew, oh, okay, this pot has that signature, then it comes from this pot maker, and he makes the best pots.

Andrew Michael: It’s quite literally a trade mark.

Jacob Tingen: Yes.

Andrew Michael: It’s a mark that distinguishes this is something that comes from you.

Jacob Tingen: This is my trade, and it marks who I am. Yeah.

Andrew Michael: Yeah. On that note, what can you trademark? You can trademark names, logos, smells, if I remember correctly.

Jacob Tingen: Yeah.

Andrew Michael: Yeah, go over it.

Jacob Tingen: You can trademark smells, and a lot of people are like, “What, trademark smell?” But perfumes, that’s an industry where smell becomes an issue, and then colors is a very popular trademark item as well as sounds. “Mattress Discounters,” so there are sounds that are trademarked. The NBC trademark, Law & Order, sound, very distinctive. These things are trademarked. You can trademark a lot of things. As long as they’re indicative of your brand, that’s what’s important.

Andrew Michael: Okay. So it’s pretty much anything that when someone sees it, hears it, smells it, the first thing that comes to mind is, oh, that’s that brand?

Jacob Tingen: Yes. That is the idea.

Andrew Michael: So the Windows’ startup sound, that kind of stuff?

Jacob Tingen: Yes.

Andrew Michael: Anything that’s like, oh, yeah, that’s blank, you can trademark.

Jacob Tingen: Yeah.

Andrew Michael: What else? Oh, let’s talk about what are the different types of trademark, like what can you trademark. I know there’s generic things, so you can’t trademark fish, for example.

Jacob Tingen: Oh, okay. Right.

Andrew Michael: You can’t just have a can with fish on it and be like, “This is my trademark. I control all fish.” Then there’s things like descriptive trademarks where it’s like Good Fish or something. Then there’s specific ones where it’s like Uncle Ben’s Amazing, Super-Amazing Fish or something. What are the different tiers, and how does that relate to trademarking something?

Jacob Tingen: Yeah. One of the things that you have to look at when you are trying to trademark something for your brand, and this is a conversation I have with a lot of clients actually, is what we call levels of distinctiveness. The more distinct your mark is, the more likely that you’re going to actually get a trademark in it.

Jacob Tingen: Using the example of fish, if I’m a fish salesman and I say, “Fish,” and that’s the name of my business, I can’t trademark that if I sell fish. Now, if I seel computers and I call my company Fish, I can trademark that in the same way that Apple is a computer company. Now, if Apple sold apples, they couldn’t trademark the sale of apples and use Apple because it’s a generic trademark.

Andrew Michael: It’s not distinctive of that.

Jacob Tingen: It’s not distinctive of that. One of my other favorite fruit technology companies is actually a hosting company called A Small Orange, so that’s their mark. I think it’s pretty clever because it’s A Small Orange hosting. It’s distinctive to them. Something is distinctive when they call it fanciful or arbitrary. Fanciful is I make up a name, and arbitrary is when I assign something completely arbitrary to my product like Apple for computers or Fish for computers or Fish for literally anything that’s not a fish. If I was Octopus Legal Services, then by golly, Octopus is my mark.

Jacob Tingen: There are levels of distinctiveness, and it goes from generic all the way through descriptive, suggestive, and fanciful and arbitrary. Now, lawyers a lot of times, and this is what I often see, is when people are launching a product, they want their customer base to automatically think of a certain kind of product when they hear the name. I’ll see a lot of marks that are descriptive. Some people will say, “Oh, well, I want to start a dating app based on geography, and I’m going to call it Geodate.” Well, I’m sorry, but that’s descriptive. You’re not going to be able to register your trademark on the Principal Register. You can register on the Supplemental Register, and maybe we can talk about that.

Andrew Michael: We’ll get into that later. Yeah.

Jacob Tingen: So we’ll get into that. Geodating is probably very descriptive, whereas World Appointment might be more suggestive and probably automatically distinctive enough to register on the Principal trademark register. I know that’s a silly example, but often I’ll have people come in and say, “Yeah, I want to name my kayaking site Kayakow.” I’m all like, “Okay, well, that’s kind of descriptive or suggestive.”

Jacob Tingen: I’ll just suggest to people, “Why don’t you choose a fanciful or arbitrary name and then just build that intellectual property, put marketing budget into it. Be clever.” Like the hosting company A Small Orange, why would I name a bunch of servers oranges? I don’t know, but it’s really clever, and it worked out for them. That’s-

Andrew Michael: And we’re talking about it now, so it’s distinctive enough or it’s interesting to talk about.

Jacob Tingen: Yeah. No, it’s cool.

Andrew Michael: Yeah. Let’s go into Supplemental and Principal registers for trademark just because that’s-

Jacob Tingen: Okay. You want some of that-

Andrew Michael: Yeah, just because that seems like something super related to what we were just talking about.

Jacob Tingen: Okay.

Andrew Michael: My understanding is that for things that are super suggestive like the good trademarks, they get on the Principal Register. They automatically get all the protections, all of the everything related to trademark law. Things that don’t really reach that level of distinctiveness or suggestiveness can still get a trademark, but it’s sort of like a lower type of one, which would be like the Supplemental trademark register. Can you expand on the differences between these two and what gets you on one versus the other?

Jacob Tingen: Right. We talked about these trademark levels of distinctiveness from generic, descriptive, suggestive, fanciful and arbitrary. What the trademark office does is they draw a line somewhere in the gray area between descriptive marks and suggestive marks. They draw a line there, and they say, if it’s on this side of distinctive, if it is a distinctive mark, then it automatically has trademark protections when you register it, and it can be registered on the Principal Register.

Jacob Tingen: If it’s on the other side of that distinctive line, if it’s descriptive, you can’t register generic trademarks, but if it’s descriptive, then you can build up distinctiveness in that name over time is the concept. So they’ll allow you to register a descriptive mark on the Supplemental Register for your period of five years, and it’s presumptive that you’ve then built up enough distinctiveness in your mark to then move it to the Principal Register later on.

Andrew Michael: It’s the difference between first making a company and calling it Good Computer Company and then after 20 years in the business when someone thinks-

Jacob Tingen: Of being the Good Computer Company.

Andrew Michael: Of being the Good Computer Company. Whenever people hear that name, now you’re distinctive enough.

Jacob Tingen: Right.

Andrew Michael: The cutoff point is, as you said, five years for that of being on the Supplemental Register.

Jacob Tingen: Of being on the Supplemental Register. You’re always subject to challenges to that kind of designation, so if another Good Computer Company comes along and says, “Hey, I want to call myself the Good Computer Company,” and they take issue with that, of course they can file against that. Presumably, after a period of time on the Principal Register, your mark becomes incontestable and nobody can take that from you, but you got to be aware that when you use descriptive marks, your rights may be eroded over time. My best advice is just go for something fanciful and arbitrary, have fun with it.

Andrew Michael: Because if you have a descriptive one, you have to defend it, you have to market it, you have to make it yours.

Jacob Tingen: Right. It might seem like a short-term payoff, oh, people are going to associate my product with what it does, but long term you probably want some kind of fanciful or arbitrary name.

Andrew Michael: On another related note to this, let’s talk about trademark priority. Because obviously, you can have a business called, I don’t know, Good Law Firm in Richmond, and you can have a business with the same name in California because they don’t really interact with each other. But at the same time, under trademark law there would be priority if the one in Richmond tried to open a business in California.

Andrew Michael: How does trademark priority work just generally? Who gets the priority when registering for a trademark, because I know you have that Burger King example that you like. That would be interesting to talk about.

Jacob Tingen: Okay, yeah. The concept of trademark priority is it’s literally, I don’t want to say finders keepers; first come, first served. So if I start using it first and then you start using it later, well, I used it first. It’s the childhood argument, but it’s how the law operates. If I start using, let’s use Burger King, so that is a great example, and it’s pretty fun. Burger King, of course a national franchise brand, I believe they’re headquartered out of Florida.

Jacob Tingen: They were rolling out across the nation, and they had the federal trademark registration for Burger King. That’s the whole point of signing up for a franchise is that when you sign up for a franchise you’re purchasing the licensing. You’re purchasing the mark. You’re purchasing the branding or a license to use it. What’s interesting is that I think in Illinois somewhere outside of Chicago there was an actual chain of Burger King restaurants, like a small mom-and-pop chain. Burger King comes rolling through, and lo and behold, there’s already a Burger King in Illinois.

Andrew Michael: A whole separate business Burger King.

Jacob Tingen: A separate business Burger King, yeah. They were the priority user, and so how could this even happen? Well, first of all, Burger King should’ve done their due diligence and searched out to see if there were other users. Sometimes if a bigger brand finds there’s a priority user they’ll offer to buy them out, that kind of thing.

Jacob Tingen: Secondly, you don’t even get the opportunity to register for a federal trademark unless you use an intent to use mark. We can talk about that, but you don’t even get the opportunity to register for a federal trademark until you do interstate commerce. If it’s a local restaurant that has a name like Burger King and never has any plans or aspirations to leave their local community, then they would never register maybe for a trademark or maybe even never pop up on anybody’s search.

Andrew Michael: Radar, yeah.

Jacob Tingen: Burger King comes through, and ultimately a court decided that this local chain had priority to use the name Burger King. I think till today, I mean I looked it up on Wikipedia the other day, even today there’s a certain square mile radius where the Burger King franchise just can’t invade because this other local Burger King chain has priority to use the mark in that geographic area, which is mind blowing. It’s really cool.

Andrew Michael: Yeah. It’s really interesting. Now that we’ve covered a lot of the basics, really, what is the point of getting a trademark? Why should a small business that’s doing interstate commerce apply for a trademark? What benefits does it provide legally speaking? What’s the point really, is the whole basis of?

Jacob Tingen: Well, I think there’s actually some really neat reasons to get a trademark today, and it depends again on your business. It’s expensive to get and maintain a trademark, not going to lie, and then to also defend it. You have to pay an attorney. Hopefully, you’ll pay us. You have to pay filing fees with the government, and then those fees, you’re going to keep paying them, because you got to renew your trademark on a regular basis every five years or so.

Jacob Tingen: The interesting issue when it comes to trademark law and why a small business would need one is this, first of all, it’s just part of your intellectual property portfolio. Intellectual property is probably the most valuable property your business has. Your trademark and brand name is wrapped up a bit in your goodwill of your company and what people associate with your brand. People when they hear brands like Gucci or Nike or Tesla, they associate certain things or qualities with that brand.

Jacob Tingen: Hopefully, when people hear Quacker Sneakers, if that’s your brand, hopefully they associate, I don’t know what that brand would be, funny animal noises when you walk in tennis shoes. I mean, I don’t know, but they’d associate that with your brand.

Andrew Michael: Yeah. I think the example that the patent office uses is if you have a line of sneakers and one particular sneaker, their name is known for quality, for a low price or something, whenever you see that name, then you know you’re getting high quality for a low price and you’re more likely to buy it. Whereas if there’s one right next to it with the same name that’s horrible quality, it represents your brand really, really badly because it’s not legally protected.

Jacob Tingen: Well, and so on that topic, let’s talk about why it would be valuable for you to get a trademark as a small business, in particular in today’s world. Knockoffs from international communities, if you have trademark protection, then CBP, you should be able to have them watch out for infringement on goods that violate your mark. I recently read an article about what are Amazon sellers supposed to do if I create something really cool and then somebody infringes on my mark by creating a knockoff product that isn’t the same level of quality and pretending it’s the same product. It’s the same, but it’s not the same.

Andrew Michael: Because you sell it, it’s like used under the same-

Jacob Tingen: Yeah. They sell it on Amazon as the same. Now of course, when it comes to a big marketplace like Amazon, part of that is up to how they police it, but if you’ve got trademark registration and you’ve got a lawyer behind you, there’s a chance that you could fight against Amazon a little bit harder for your rights. You could potentially prevent imports of products that aren’t legitimately yours. That’s one area where a trademark would come in handy if you’re physical product seller on Amazon and you’ve developed an established brand.

Jacob Tingen: Outside of that, generally you have to pick a business name, so you may as well pick a good one, and you may as well invest in it. Again, people come to me and they’re like, “Well, I want to name it this descriptor.” Pick something crazy, be creative. People like a good, creative business. I like Apple for computers.

Andrew Michael: Square.

Jacob Tingen: Square for processing payments. What the heck? Pick something simple, pick something fun. Make up a word. Kodak is famously made up. It literally means nothing but a picture company.

Andrew Michael: The best example now is Google is basically synonymous with just searching something online.

Jacob Tingen: Well, but we need to talk about genericide and another-

Andrew Michael: That is a whole separate issue.

Jacob Tingen: Genericide is a different day.

Andrew Michael: Yeah.

Jacob Tingen: Yeah. I never say, “I’m going to web search this.” Of course, Google’s going to fight tooth and nail until the day they die that Google hasn’t become a generic term for web search, but yeah, you want to be a household name.

Andrew Michael: Yeah. You mentioned costs earlier, and I think that’s a good transition point into registering a trademark in general. What’s the basic cost of registering for a trademark? We said you pay attorney fees and you pay filing fees. I think I saw a good ballpark estimate for a single trademark is about $3000, usually somewhere around that range. Specifically, what I’m talking about now though is the fact that you have to pay a fee for every trademark class you register in.

Andrew Michael: For example, if my business sells, I don’t even know, lawnmower services, lawnmowers themselves and then leather gloves for lawnmowers, then to trademark each of these individual classes I have to put a separate filing fee. So to summarize, talk about the benefits of registering for multiple trademark classes, what trademark classes are in general, and how being specific can also help with the costs of this.

Jacob Tingen: Right. The whole point of investing into a trademark and investing into your brand in this way is to make your mark distinctive and make your brand stand out. The whole point of trademark classifications is that it helps us delineate where the boundaries are on what your mark covers. Let’s talk about Apple for computers.

Andrew Michael: Yeah, because they had that one really cool court case with the other Apple company, right, Apple Records or something?

Jacob Tingen: Oh, yeah. No, there’s always interesting litigation. Actually, Apple’s a bad example though because it’s a famous mark. When you’ve got a famous mark, you pretty much have carte blanche to have rights over everything, so let’s pick something a little bit less famous or just make up an example. Let’s just assume that there’s a company called Penguin Clothing. There probably is a brand called Penguin Clothing.

Andrew Michael: Yeah. That’s a good example.

Jacob Tingen: Penguin Clothing makes clothes.

Andrew Michael: And puts a little penguin on it or something.

Jacob Tingen: Yeah. Presumably, Penguin in this hypothetical, if a belt maker, if some kind of leather product maker was called Penguin and they made leather products for, I don’t know, horse saddles or just leather products randomly but they’d never done belts, if they decided to start doing belts, well, they might be infringing on the Penguin Clothing maker. When you register a trademark, the USPTO has a list of 45 trademark classifications that are generally agreed upon in the international community, like these kinds of products go inside of this category; these kind of products go inside this category.

Jacob Tingen: If Penguin leather maker, who makes harnesses and saddles, tries to enter the clothing business via leather belts and then they try to register that mark, if Penguin Clothing maker has already registered the mark in clothing, well, then there’s going to be conflict. The Penguin Clothing maker is going to be the priority user over belts.

Andrew Michael: Because they have been using the trademark in the clothing class for longer.

Jacob Tingen: Yeah. The idea is, is that your class gives you protection in the scope of your bubble.

Andrew Michael: Bubble.

Jacob Tingen: Right. I think that’s a good way to put it, and so nobody can enter that bubble without your permission. Now, if a business is in a closely related area, that’s where you get some conflicts. That’s where you have to fight over priority and registration of marks or build up a new brand identity. But generally, Delta Airlines, Delta Faucets, there’s no conflict there because I know that the people who make Delta Faucets aren’t making airplanes. They’re not making 747s, so there’s no conflict there. That’s why we have international classifications.

Jacob Tingen: Why would a person want to register in more than one international classification? Well, if I have multiple products. Let’s say I’m Target, and Target literally makes everything. If I go to Target, I can get clothes. I can get shoes, but I can also get TVs. I can water bottles.

Andrew Michael: Food, get everything.

Jacob Tingen: I can get food. If I’m Target, again another famous mark, so maybe not the best example. But if I’m Target, I’m going to register my Target trademark across a wide variety of industries. Now, presumably, Target probably isn’t going to register in heavy industrial machinery, so if I’m a heavy industrial machinist, maybe I could get away with registering for the mark Target something or other Heavy Industrial Machinery, but then again, maybe not because Target’s a famous mark. We can talk famous marks some other day.

Jacob Tingen: I think that illustrates the point that if you’re a company that makes lawnmowers and then leather gloves to go along with the yard work and the lawn mowing, it’s to your benefit to register in both of those marks so that when later Target decides to start making products in your category, you can say, “No, no, no, no, I’m already here.” Or when some other big brand or other bigger company comes into your space, you can say, “No, no, no, the government already gave me protection, and I’ve been making products in this area for a long time. I’ve already registered them.” That’s why you’d want to do that.

Andrew Michael: Yeah. One last note on that is the difference between goods and services in trademark classes. Specifically, I think there’s 35 or 36 goods like buying a leather belt or buying leather gloves. Then in addition you can also trademark a service such as Andrew’s Lawnmower Company or something or legal services is its own, I think, either separate or … It’s like personal-

Jacob Tingen: You can trademark things within legal services.

Andrew Michael: Yeah. You can trademark not only goods that you’re selling but also services that you’re offering. For example, if we were to start selling Tingen & Williams tee-shirts, for example …

Jacob Tingen: Which we will be soon, so get your lawyer up shirt at tingenwilliams.com.

Andrew Michael: And we wanted to protect that, we would also have to file under the clothing sellers trademark class for that kind of thing.

Jacob Tingen: Right. That would be a product classification.

Andrew Michael: Yes. It wouldn’t fall under our service trademark.

Jacob Tingen: Yeah. Now, if you were printing on shirts, then that would be a service mark.

Andrew Michael: Yes.

Jacob Tingen: Yeah, so that’s different.

Andrew Michael: All right. Gone over so much time. Let’s talk about registering a trademark in general, because it’s actually relatively easy. It’s easy to do, it’s hard to do well.

Jacob Tingen: I’m going to say it’s deceptively easy.

Andrew Michael: Deceptively easy.

Jacob Tingen: I think that’s-

Andrew Michael: That’s a better, yeah.

Jacob Tingen: Because literally, anybody can go in and register a trademark, but it’s kind of the Jurassic Park question, nobody ever stops to ask if they should. A lot of people who are a little less informed, I’m not saying that you can never register your own trademark. Read my book, 2.99 on Amazon, and then have a go at it if that’s what you choose to do, but it’s always recommended to speak to a lawyer.

Jacob Tingen: A lawyer’s going to look over your trademark search report. You should definitely get one. If you believe your mark has any value, please get a trademark search report. Some people are like, “No, I can register without one,” and I just don’t represent clients who aren’t willing to get a search report. It’s part of the cost.

Andrew Michael: It saves money in the long run too.

Jacob Tingen: Yeah. It’s going to save you heartache in the long run, that’s for sure. Even though people can register, and you can get away with it, but if later on down the road somebody discovers that there was a priority user, then you’re sunk. You’ve just invested all this money in your brand.

Andrew Michael: Because you lost your priority. You no longer have any claim over it.

Jacob Tingen: You can find trademark attorneys that will register without doing a search report first, but I am not one of them. Yeah, first things you want to do, you want to do a quick search on the USPTO database and make sure that nothing there pops, but then you want to actually commission a comprehensive trademark search report. That will search the internet and local business databases throughout the country and make sure that you’ve got clear use to use the mark.

Andrew Michael: Yeah.

Jacob Tingen: Once you do that, you go to the website at the uspto.gov, and then they have the different forms there. Depending on which form you use will determine how much you pay per international classification. A good lawyer can help direct you to the cheapest options, which is generally a TEAS Plus application, but you should know that just because it’s TEAS Plus and it’s the cheapest fee, there are legitimate legal reasons for registering a regular TEAS application. I’m not talking about a paper application, but there are legitimate legal reasons to go for the higher international classification fee. We can talk about those if you ever want to hire me, whoever’s out there.

Jacob Tingen: Anyway, you go there, you fill out the form. That’s it. But knowing what to fill out and how to fill it out, I can field a lot of questions on that, but you should really just hire an attorney at that point.

Andrew Michael: The applications themselves are very, very specific about what they cover, so if you mess up even once, there is an attorney on the other end who’s receiving your application. If you messed it up, they’re going to send it back to you or just deny it in general.

Jacob Tingen: Yeah. They could deny. What typically happens, and this is frankly where I get some clients, is you’ll get an office action. Then you say, “Well, I don’t know how to respond to this,” and then that’s the point at which some people hire an attorney. If I had to jump into the middle of a case and clean up a mess, that’s more expensive typically than if you’d just hired me to register it to begin with, to be honest.

Jacob Tingen: That’s not to say that there are never some easy or quick fixes in some of these. Some of the issues are just procedural, you ticked the wrong box, but sometimes ticking the wrong box has important legal significance. When you’re talking about again your intellectual property and your business assets, you want to do it right. I’m not going to sell you snake oil and say you can’t register a trademark on your own ever, but I would tell you that as a small business owner myself, I’ve learned that if somebody gets paid to do something specialized, it’s probably worth it to hire them to do it.

Andrew Michael: There’s probably a reason that they’re getting paid for that.

Jacob Tingen: Yeah. Again, we do trademark law, and I’m happy to help you with your mark.

Andrew Michael: All right. Just to start wrapping things up, we’ve already gotten our trademark. What do you do after you’ve received your official trademark? How do you protect it? How do you maintain it? Because you mentioned earlier you have to renew it. I think it’s the first time is every five years, and then it’s every 10 years after that.

Jacob Tingen: Yeah.

Andrew Michael: What happens after?

Jacob Tingen: Well, after renewing your mark on the Principal Register, you have to file for incontestability, which basically means the protections for your trademark are a little supercharged, so if there ever is litigation, you have additional rights.

Andrew Michael: You’re given the benefit of the doubt thanks to your trademark.

Jacob Tingen: Yeah. You’re given benefit of the doubt. That’s of course helpful to you. One of the other steps that you need to do is you need to police your mark, and by police your mark, it means if you find an infringer, you should send a demand letter. You should say, “Hey, what are you doing?” Then if they don’t stop, then you have a right to sue, take them to court, get damages. You should pursue damages because they are stealing money from you, literally. It may not seem that way on its face.

Jacob Tingen: If I started making soda and selling it and calling it Coke, I’ve taken money from Coca-Cola. Even if it tastes exactly the same, let’s say I figure out the secret recipe, which is a trade secret, and that’s a different kind of intellectual property. If I start selling a soda and I call it Coke and it looks like Coke and it tastes like Coke, well, then that’s-

Andrew Michael: People aren’t buying Coke.

Jacob Tingen: People aren’t buying Coke, and so I’ve stolen from you. No matter what the product or company is, that’s what’s happening, and you should pursue your rights. You should get your money. You should stop anybody who’s infringing on your use of your mark.

Andrew Michael: All right. Do you want to have any closing remarks for protecting your trademark in general, anything final?

Jacob Tingen: Yeah. Just reach out to me. I’m happy to help you with that. I think that trademark is a fascinating area of the law. Like I said, it was the area I chose that I wanted to do when I started practicing, and literally just commissioned a trademark search report recently and will be filing some trademarks here soon. It’s pretty exciting stuff, and I’d be happy to help anybody out there with your brand too.

Andrew Michael: Sounds good. I think that about wraps it up for today’s episode of Law Talk, so thanks for coming, everybody. I hope everyone has a nice week, and we will see you next Wednesday.

Jacob Tingen: Thanks.

Andrew Michael: Thanks, everybody, and …

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