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IP advice when starting your own law firm

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By Rachel Brenke

intellectual-property_mainJumping into the world of solo or small law firm ownership can be a new adventure, a way to escape big law or a step towards owning a piece of the entrepreneurial pie. Many new business owners – whether they’re in the legal field or not – get caught up in the excitement of picking a name, setting up a website and handing out business cards. In the process they become completely remiss to the fundamental intellectual property issues surrounding their own firm. If you’re one of these attorneys or perhaps you’re advising entrepreneurs in business formation set-up, it’s important to have a grasp of some initial intellectual property items to include in your new business formation audit.

Two major pieces of intellectual property all entrepreneurs need to protect are their business names and logos. Your business name and logo are the visual brand and source identifiers that will attract and maintain the attention of the marketplace. As your firm grows, you’ll develop increased brand recognition making it easier to garner new clients as your marketing efforts prove fruitful. Failure to protect two key elements of your brand — name and logo — can lead to disastrous results including confusion in marketplace, negative attribution of another firm’s reputation on yours when names confused or a need to rebrand in the future to avoid these issues. You can take practical steps to avoid these issues by implementing the proper development and search evaluation.

Picking your business name

First, analyze your firm name to ensure that no other individual or entity is already using a same or similar name of your law firm services. Many entrepreneurs, including attorneys, simply choose a name they like without exploring what else is out there. They select names that are the same or similar to other law firm names which can not only lead to lack of ability to obtain trademark protection through a federal registration or other means, but may also allow the danger of another firm’s bad practices being erroneously imparted upon your business due to a confusion in names by the public. Likewise, having a same or similar name to another firm may bestow upon them the efforts of your marketing. In the Commonwealth of Virginia, unlike many other jurisdictions, firms can also use trade names in place of partner names on the door. A trade name is a name different from your given legal name. Instead of my practice being named “Rachel Brenke Law, PLLC,” I could use a trade name, such as “Law For Lawyers.”

Whether you choose to use a trade name or your given name, you should engage in conducting a business name search before you make a decision. This should include searching the internet, identifying if any same or similar social media handles are in use, a Secretary of State business entity database search, Commonwealth state trademark database search, and the United States Patent and Trademark Office database search.

Not only do you want to avoid consumer confusion, or a potential business entity rejection by the State Corporation Commission, but you also want to avoid using a name which infringes upon someone else. By first searching in non-legal databases (such as the internet and social media), you can quickly highlight and avoid using the same or similar business name to one already in commerce. However, do not rely on the internet, social media or even the commonwealth’s business entity database alone as an indicator to give yourself or a client the legal go-ahead to start using a name in commerce. It is recommended that once you’ve established that no other individual or entity is using your chosen name, it’s time to determine the business name is inherently protectable by United States trademark law through state and federal trademark database searches. Trademark protections may not be a goal of small firm owners at the start of their practice but is an element of intellectual property that must be considered so that a re-brand will not have to occur later down the line. In other words, make sure the business name you selected can grow as you do.

When determining if a mark is protectable, the law contemplates a spectrum of distinctiveness which helps describe strength of your mark under trademark law. The spectrum ranges from a generic wording, which is generally not protectable, to a fanciful mark, which is protectable from first use. The more the mark scales towards the fanciful end of the spectrum, the higher the probability the United States Patent and Trademark office will approve for federal trademark protections, assuming no same or similar marks exist. For example, The Law Offices of Insert Your Name is probably not going to be a protectable mark, plus it does not provide any distinctiveness in the marketplace. It is beneficial to use trade names such as “Beer Law Center” or “Music Row Law.” These trade names not only have legal protections but distinguish themselves from other law firms which, in turn, allows for easier connections and development of branding to potential clients.

Once you determine there are no pre-existing same or similar business names for legal services, you are ready to enter into commerce. It is highly recommended that once you start soliciting clients you take steps in trademarking your trade name through state and federal applications. This will not only allow for future firm growth expansion into other jurisdictions, but also to aid in protecting the brand you are working hard to set apart from other competing firms. Trademark protections open the door for benefits such as exclusive rights to use that trade name, lowered burden of proof and legal action to stop others from using a same or similar mark for law firm services.

Designing your business’s logo

The selection of a business logo is very similar to the steps outlined above for business trade names. In this case, however, you not only want to avoid a same or similar design mark to another law firm for trademark protections and brand integrity, but you want to ensure that the logo itself is protectable in nature under copyright laws. Copyright laws protect the physical artwork of your logo to ensure that others do not use the same logo in the course of their own marketing. You can obtain copyright protections through the use of unique combinations of general elements or uniquely designed elements.

Generally created elements, such as ones you find through publicly available clip art or logos created through mass logo creation websites will not afford for protections. All entrepreneurs should strive to have unique and original elements to have legal protection for your logo as a source indicator for law firm services under trademark law and also protect the design of the logo under copyright law.

By being intentional and following proper searching steps when choosing your business name, or advising clients of the same, you set your business up for success. You will safeguard your marketing success and firm growth by knowing you will be the only one profiting from your efforts, and you can operate with the peace of mind that comes with knowing you are not engaging in infringement of someone else’s intellectual property. Most importantly, you can keep focused on what you truly want to do – practice law.

brenkeRachel Brenke,
is the managing partner of Eden Law, a go-to intellectual property and business law firm situated in Fredericksburg that primarily serves solo to small business entrepreneurs. As a multiple business owner, mother of five and wife, she understands the complexities of running a business and the need for legal protections around one’s livelihood. Brenke combines her real-life entrepreneurial experience with intellectual property knowledge to provide easy-to-understand legal protection plans for entrepreneurs. When not helping to protect the David-sized entrepreneurs against the Goliath corporations of the world, she can be found hanging with her family, playing with her dogs and running Ironman triathlons.