Where would our businesses be without a professional like Andrea?
You’ve come this far…are you willing to go a little farther?
To invest in your idea and your business so no one can take it.
There’s nothing worse than finding out someone took your idea or your business name and are is making a ton more money than you.
And you not having any legal recourse because you didn’t do this ONE very important thing in your business.
TRADEMARK.
Can you do it on your own?
Sure. You can read a book. And If you have time to spend hours pouring through the USPTO searches to see if any other business is using your name and trying to figure out the legal-ease on your application so you don’t get screwed.
OR…
You can talk to someone like Andrea who knows all the ins and outs of trademark and IP law.
Trademarking a new business is a step that is often skipped over by entrepreneurs while rushing to launch their new startups. Not only can early-stage trademark research and registration help protect your brand, but it can also help avoid infringing on another mark down the road, after pouring countless amounts of time and money into the business.
Andrea Hence Evans, Esq. launched the intellectual property law practice, The Law Firm of Andrea Hence Evans, LLC . She worked at the United States Patent and Trademark Office (USPTO) for 5 years as both a patent examiner and a trademark examining attorney after graduating from law school.
She has many many accolades, her most recent being 2020 National Bar Association Women Lawyers Division (WLD) Outstanding Woman Lawyer in a Solo/Small Firm
Andrea is a GEM and over the years has helped entrepreneurs and indie businesses protect their ideas and themselves with trademarks.
Pull up your chair to the kitchen table and enjoy the show.
Resources:
Full Transcript (unedited)
00:01
There we go. Andrea, welcome to two hands made this.
00:07
Thank you, Christine. I’m so excited to be here. And I’m so excited to talk to you all in your community today.
00:13
I’m so excited that you’re here too, because what you know, is so important for our community, that there’s no way wasn’t having you on as an expert. And because, excuse me, I’m finding, as I said, before we enter and before we hit record, that I’m finding a real gap in the industry as far as not only marketing, but helping makers find those those tools and those experts that they need, and you just happen to be one that we need everybody to know about. So, as we start, could you just share a little bit about what got you interested in your niche, like your service? Because just real quick, because I know you talk about this. For everybody out there, Andrea Evans is a trademark attorney, among other things. So could you tell us about that, Andrew, I like what really got you going here?
01:09
Yes. So I love what I do. First of all, you know, things that are made with two hands are probably one of my favorite things. Anyway, I’m everybody’s best customer. So that’s part of it is that I really do love things that are made. And I love being an extension of my clients team. So like you said, I’m actually an intellectual property attorney. So I’m actually a patent, trademark and copyright attorney. And when I went to law school at George Washington law school, the law school has the number one program and intellectual property law. Well, I actually went to law school for environmental law, thinking that I will use my math and civil and environmental engineering degree. And I wanted to be out on the front lines helping with environmental justice. But because I had an engineering degree, and because I had gone to GW, my professor said, Hey, to be a patent attorney, you have to have an engineering degree. So why not take some classes, see if you like it, and the rest is history. So I took a lot of patent, trademark and copyright classes, I realized that all of the experts in the field started their careers at the Patent and Trademark Office. So I did the same thing. After I graduated from GW, I worked at the Patent and Trademark Office as a patent examiner and a trademark examining attorney. And like you said, there’s so many different myths and misconceptions. And so many people were calling just spending their life savings and getting ripped off. And because I had a big network, and people knew that I worked in this field, they started calling and asking for referrals, and I’d refer them out, make a long story short, that particular mentor said, Look, you know, people are calling you for a reason, you need to share your gifts. And I literally put in my two weeks notice. And that was 14 years ago. And so here I am today, owner of the law firm of Andrea Hence Evans, and I’m just really proud to see my clients go from having an idea on a napkin to Shark Tank, to see someone making soap in their kitchen to selling it on the shelves of target. And I feel like I had something to do with it. Because the brand, as you know, is extremely important. So I’m happy to talk about that today.
03:25
You know, and and that’s a key point. You know, first of all, I didn’t know that you started out in inventor environmental law. Yeah. I don’t know why I never asked you about that. But that’s interesting. And then you can, you know, I love this, I love how the universe works. And puts us like, right where we need to be, you know, that you had this professor that? By the way, you know, you have an engineering degree. What about patent law? And you probably in our industry, especially in our in our little corner of the maker world, you’re probably one of the most important and sought after people, you know, as as makers grow their brands because of what you do and because how, what not not just how well you know it, but how easy you make this process for everybody that’s going through it. So can you tell us a little bit about what are the biggest problems, issues that you’re seeing with, you know, product makers, you know, people that are making a product that are growing, that are really ready to get on the shelves, and like some of those ugly cry moments that they’ve had before they’ve worked with you?
04:35
Sure. So there’s some common myths and misconceptions. So one is that people assume that they’re too small to trademark. And I see this all the time where they say, look, I am in my kitchen making soap. No one’s gonna stop me. I’m just going to use this name, but it’s actually cheaper Believe it or not to hire an attorney like myself, get some research done and ensure that the name Or the symbol or whatever that image is that you want to secure as your brand is actually available. Because often, the number one reason people don’t hire an attorney is you guessed it, they don’t want to pay. But it doesn’t cost as much as you think. So the cost is really relative. So the second thing I’m going to say is that people count themselves out because they say they can’t afford to get protection. But when you think about it, trademarks lasts as long as you use them. And so when we think about Coca Cola owning the oldest trademark since the 1800s, that price that you pay that couple of 1000 is a drop in the bucket. I mean, if you make that back, because I’ve seen people invest in a brand or a name, and gotten offered millions of dollars, because someone wanted that name. So owning that trademark, means that someone has to respect it. So they have to purchase it from you, they have to license it, you can assign it you can Willis look and be extremely valuable. And then the other thing is people don’t understand the standard of what’s called a likelihood of confusion. And so let’s say you have Christine, and I want to be Christine with a K, but you’re Christine with ch, well, people will say, Well, I’m okay and she ch but as we know when we stand back as a consumer, and we really look at how brands work, we will be confused, because when I say I’m buying so from Christine, I don’t say the one with the CH or the one with the K. So often when we are enforcing our clients trademarks, what I see is when we send these cease and desist letters, they write back and say, Oh, I didn’t know. But what I want you all to know is ignorance of the law is not an excuse or a defense. So you have no excuse, you know, you really should be taking advantage of looking at free resources like Google just to see what’s out there. And I know it hurts. But when you really want to name if you haven’t launched your business, and you’re doing your due diligence and research and get advanced, if you see someone using your name, you don’t want to add D in front of it, or my or make it plural or make it singular. As bad as you want that name, it’s going to cause a likelihood of confusion. Now, sometimes you can be small. And there could be what’s called reverse confusion where a larger company takes your name, and they use it and someone is confused thinking that even though you use it first, because you’re smaller, you copy them. So there’s so much that goes into a brand. And I like to say it’s harder than naming your child right? Because at least you kind of have someone else. But it’s so important that when you create a name that you think of a strong name. So the last tip and mistake that I often see is people choose weak names. And so just really quick, there’s a spectrum of trademarks from strong to weak. So the strong trademarks are words you make up. And that should make sense by Google. If you make up a word, it’s going to be less likely that someone has that name because you made it up. And then we go down the spectrum to words that are arbitrary. And that’s going to be like Apple for computers. And so because that word doesn’t mean anything related to computers is a strong trademark. So giraffe or lotion, you know, that’s going to be strong. But what I see in the maker industry is often people use descriptive words. And descriptive words are really hard to enforce because people use those words to describe their products, lavender for your brand and your selling lotion. Well, lavender is descriptive. So don’t be surprised if when Christine describes her lotion, she says it smells like lavender. And then last but not least, you definitely can’t trademark generic term. So I like to say, stick with the stronger brands and names and make sure you own whatever you create in terms of these logos because we start off small and want to pay people $5 and $50 or some extremely low price only to learn that they copy that from someone else. But definitely consult with an attorney and my trademark crusade is invest in your ideas and investment. But I rather you know upfront what’s available and understand your options then to just make all these assumptions that people make,
09:09
you know, and that’s I’m so glad you’re talking about that that’s such a good point because even though you’re small or smaller starting out or you’re growing You know, we’ve seen it even some of the brands that are heading to six and seven figures and beyond still maybe haven’t trademarked yet. And they’re thinking oh I don’t need to it’s okay no one’s gonna take my name but what happens if and I think that’s the investment we have to make as the what happens if God forbid you know, you you’ve put your entire life entire life savings, your blood, your sweat your tears into your brand, and then you don’t trademark it and lo and behold, someone comes and finds out you didn’t and it takes it right out from under you
09:50
right and then you have to pay them more to get your name back. So I like to say have the trademark and use it more like a sword and shield. That’s a scramble to get Your name back because honestly, by the time you realize that someone is using your name, it’s probably because of confusion is because someone left a review, and you realize they weren’t your customer, or it’s because someone tagged you in and oh, you know, press release, and it wasn’t you. So by then it’s too late because the damage is done. And you don’t know how many customers went to the other Christine with the K, before they came to you. So that’s what you have to be careful about. And because so many people, for some reason, just count themselves out. You know, I want you all to start empowering yourself and treating this business, whether it’s made with two hands or two machines as a business and treating yourself like a brand that it deserves to be treated as.
10:46
Absolutely, yes, because you are a business. And that’s I think the important thing, and even though people think, again, I am making this with my two hands, it was a hobby, it’s now a business that you don’t need to do this. But again, we don’t know what we don’t know. So that’s why we’re doing this and telling you this is because these are the really important things that you do need to know. Andrea and I are part of a community that we’ve had several friends that have come up against issues and problems. And, you know, Andra Andrea is so good at what she does as far as trademarking. So you make the process, pretty painless, painless, and easy for people. So can you talk a little bit about what this process is that people have to know about? Because again, they think, Oh, my gosh, it’s too much work. It’s gonna cost me too much, you know? No, I, I’m, again, I’m too small. I’m, you know, it feels like it’s too big, maybe of a business decision to make at this point in your career, but it’s really not. Yeah, what does that feel like? Or look like for people?
11:49
Yeah, let’s definitely talk about that. Because, really, for the people that may be watching, saying, Look, it’s a new year, and I plan to start a business. So I’m going to launch a business, you can actually file a trademark application as an intent to use application. So you can say, Hey, I haven’t used Andrea yet for lotion, but I plan on it, you can follow the application, let them know that you intend to use that for those products. And then they’re going to research on the USPTO database. If they don’t find anything, they’ll publish it in the Gazette for third parties to challenge. And then if no one challenges, they allow the trademark, and give you a chance to show that you’re using it. Now you can extend the time to show use up to 36 months. So the faster you use the trademark, and I’m saying actually put it on that bottle of lotion and make a sale out of the state, the faster you get the trademark. So the first tip is I want to tell people watching that, hey, if you plan to use this name, or symbol or image, go ahead and file the application to get it and to start that process. So intensive use is an option. Now there may be some makers watching saying, Look, I’ve been in business for five years. But Andrea has a good point, maybe I should consider filing? Well, you’re using it already. So you’re using the name for your products and services. These two dates that are critical, the first date that you use the trademark for those products and services, and then the first day to use the trademark on those products and services out of state. Because what’s required to get a trademark is you have to be either intending to do business outside of the state or doing business outside of the state. And we know that’s easy, because everybody’s global and worldwide. And we’re on the internet. And who wants to think small, you know, that’s the way we should think about it. But when you file an application saying you’re using it, it’s examine is published for third parties to challenge and then if no one challenges you and there are no references that are cited against you, the trademark registers. But one thing to know in terms of timing is this process can take nine to 12 months. So it’s not something that happens overnight. But once you get that trademark, the benefits are priceless. You can basically stop others from using it, you know, which is the main benefit. If you’re worried about infringing products coming from overseas, you can actually register the trademark with customs, you can actually will it to your kids or your whoever you know, so as long as the trademark is used, you get to keep it. And so those are the main tips that I like to point out is that it doesn’t happen overnight. But the main one that most people don’t recognize is when you intend to use the name you can actually start that process.
14:43
Now again, another thing I did not know I learned so much from you every time I talked to you. So okay, so that’s important and because so many makers now have online stores, e commerce stores, so you know you’re going to be selling outstate so I have a question as you’re talking made me think This when I was taking my notes, so Okay, we know makers that do have brick and mortar stores. And they do have you know, whether it’s their town in their state? Can you talk a little bit about that? Because Is it important for even those makers to have a trademark for their brand?
15:19
Hey, I’m pro trademarks all the way. What I spend more time doing and where I make most of my money is when people don’t trademark because now we’re having to sue someone, or, you know, we’re having to challenge someone to get the name back. And so to me, it makes more sense that as soon as you know, you’re you you plan to use a name. Or if you’re watching this, and you say, Okay, I better get this done. I’d rather you have it, then just scramble. Because what happens is, if someone else has the name, you’re gonna have to probably pay them for because it’s not easy when you’re in business for five to 10 years to tell someone just to shut down. The other thing, Christine is once you get the trademark, it’s up to you to police and enforce it. In situations where people get trademarks and watch other people use their name. And then their own trademark becomes generic or descriptive to the point where they can enforce their trademark. So if you sit back and watch people use it, and I’ve had that happen, where my client said, Oh, well, I would actually notify Christine that, hey, they tagged you, and it should have been me. And when it was time to enforce the trademark and get the name back. The other Christine said, Well, hey, not only does she know about me, but I have all these emails where she was sending me stuff back and forth, congratulating me on getting an award. So you have to be careful, because you don’t want to sit back and watch people use your trademark and just assume is makes the assumption that you’re giving them permission to use it.
16:48
Oh, interesting. So so you really do have to watch out and policing, meaning, you know, checking every month every year, you know, again, you know, because we’ve got social media, we’ve got all kinds of places that people can use that. So how do we police that?
17:06
Well, exactly what you said a free way to do it would just be Google Alerts. But at my law firm, we actually do offer monitoring services where we have proprietary software that can monitor and really the sooner that you are alerted that someone is using the trademark, the better off you are, because if someone creates a site, but they haven’t launched and invested in labels, you’re more likely to send a strong letter to get them to stop this someone that has a brick and mortar store, it’s harder for them to change their name and take, you know, signs down off the store. Yes, and the investment that’s already gone into signs and labeling and all that want to go back to the brick and mortar question for just a second here to just to just because I was thinking about this as well. So because because you know, we do have many people that we know that do have brick and mortars. But as the world changes, as we know, with, you know, with a pandemic that happened in 2020, we see we saw a lot of stores having to close their doors and think of alternative ways to sell. Right? So people are going online,
18:09
you know, things to think about for people, because even though you may be selling in state, maybe you want to end up having, you know, another store in another state. So some of the things to think about as you grow, because maybe people aren’t thinking about that right now. But what are some of the things that we can tell people that like, Hey, you know, the possibilities are there. So what, you know, what does that look like?
18:34
Well, honestly, it doesn’t matter if you’re online, or you have a brick and mortar store, what we’re talking about is interstate commerce. So if you’re selling in Maryland, and someone comes in from DC, and purchase purchases a product that’s interstate commerce, or if you have a brick and mortar store, most of the people I know offer online services. There are two different things to point out. So one is a retail actual service, right? So you can actually trademark a name for a service, which will be an online retail store or an actual retail store. Or let’s say, you’re not really worried about the store, but when you go into the store, Evans IP law, everything is branded Evans IP law, I may want to just trademark it for the actual products. So you know, is two different things because having a retail store could mean you’re selling products of others. So I can have an Amazon style store selling 50 different products or 50 different companies or I can have my store that has everything branded with my name on it. So something to think about for sure.
19:41
Interesting. Interesting. Okay. Yeah, there’s, I mean, there’s, I feel like there’s so much more to go down the rabbit hole with but we really want to keep this simple because I’m thinking of all these different questions. So we really do want to keep it simple for people. It’s really not that hard of a process. You just have to get started, right. So Let’s go back and just and I want to be mindful of your time and for everybody here listening as well that what are those, those top three tips that brands should really think about when it comes to trademarking their brand? And why, you know, you talked about that, but let’s really kind of just make it super clear. And and we’ll and then we’ll give people links to you. Because,
20:25
yeah, well, the first thing is you want to create a strong name, you know, so that’s what we talked about earlier with the words you make up or some arbitrary word like Apple for computers, Google, which is going to be strong, because you made it up. So you want to consider that. The second thing is you want to do your own research, even before you consult with an attorney like myself. And that can be done by using Google just to see what’s out there. So a lot of people assume that because they go to the USPTO database and don’t see the trademark registered that they can register the trademark. But what you have to recognize is, is not the first to file the trademark application is the first to use it. So you can beat Jane Doe to filing the application and get it in. But if you already know Jane Doe in Texas and selling, so using that name, she can challenge you and take that away from you. So it’s not the first person to file. So a lot of people will consult my firm and say, hey, I’ve actually researched and I don’t see it on the database. But I do see this other company, just cut your losses. And that’s why it’s good to do this in advance. And that’s going to be my last tip. Especially if you are starting out, now’s the time to have that consultation and get a professor professional search done in a professional opinion. Because what the standard is, is pretty straightforward to look at something and say it’s identical. So I can look at Andrea versus Andre, and we’re both selling lotion. But then we have to look at first the trademarks to see how similar they are. So do they sound the same? Do they look the same? Do they have the same commercial impression, but then we have to look at the products or services. So what I mean by that is I can be Andrea the law firm and you can be Andre of the lotion company. Because the public’s not going to think a law firm is selling lotion. So you’re right. I mean, there’s so much we could talk about I have authored a book that really does explain step by step. Once you create a name, you know where to research at least spacing in the book for you to take notes. And that’s all about trademarks, that’s going to be a really good resource. And it’s really easy to read about 100 pages, but it actually walks you through. And I think that’s a good exercise. Because once you complete the book, you’re ready for consultation, or we can just talk about it during the consultation. But I do want to caution makers, because where I see a lot of makers go wrong. And this is going to be the biggest tip I can give you is that they often file their applications on their own. And so what I want to caution you about is even though the US Patent and Trademark Office does not require that you’re represented by an attorney, they recommend it. And I know it sounds cliche, because I am an attorney. But you really do save money by hiring an attorney. Because first of all, when you think about what you’re good at, the time you spend trying to figure this out is time you could spend making money on your business, first of all, so you just kind of set it and forget it. You know, and I know that from being an entrepreneur, so your time is valuable. But here’s the thing. It seems like a simple process, because you’re answering questions on an application. But your answers and that application are legally binding, you know, that document is a legal document. So when you are in court, and you have to testify, they say why did you put this and what does this mean? You can’t say Oh, because I didn’t know or I assume something. And so I’ve served as an expert witness in a trademark case, I’m constantly enforcing my clients trademarks. And a lot of money could have been saved. And believe me, some mistakes can be fixed. So there are people that are watching this, say, Oh, I just got an Office Action, I need to call, we definitely can help with that. And we’ve been retained to fix mistakes. But unfortunately, some mistakes cannot be fixed. So you lose that money. And you have to start over. And I can already look at something and see that it’s gonna be a problem. So sometimes we’ll even counsel our clients, let’s go ahead and file to get in front of Christine because she’s going to have to start over. So now if you want that name, you’re going to have to pay my clients and get your own name back. So that’s also a strategy. So this isn’t meant to scare you, but it’s more meant to get you all thinking that you don’t just because you seem small. You know what I feel like being a customer of many people watching is that to me, the products are even more valuable and the brand is more valuable because it’s made with your two hands and it’s made by human, you know, and it means something to us. So it means more to me as the customer. So with that said, especially in the maker community, most of you don’t have something that’s patentable. So it’s not something where you can stop someone from making lotion or soap or whatever. So all you really have is your brand. And so we know that because some of you sell soap for $5. And some of you sell soap for $20. And that means the brand is important because I’m associating one brand with $5, and one brand was 20. And we see that with products like Tiffany, where if I show you a blue box, and I’ll show you a black box and say, Hey, which one do you want, we’ve been trained as customers that that blue box is worth something valuable. So I definitely want to make sure Christine that everybody is clear about what even can be trademarked. So
25:52
let’s just take it back to the beginning. So you can trademark words. Sounds like the NBC Doom Doom Doom, that’s trademark. Okay, right Mark symbols, like we think of the Nike swoosh symbol colors like the Tiffany box, or the red bottom shoes, even three dimensional packaging. So if you think about the Coca Cola bottle, so a lot of makers have really unique packaging, where if people see this heart shaped package with five pearls on the side, they associate that with your brand. Imagine how valuable that could be to trademark that three dimensional shape. And every time people see that it’s owned by you. So it’s really a strategy. And that’s what the consultation is for, you know, to really sit down and look at what you have.
26:37
And again, we don’t know what we don’t know. And most of us do not know this law, we don’t know intellectual property law. So it, it really is worth your while worth your time, worth your dollar to talk to Andrea. Because, again, we don’t know these things, you know, and again, the time spent doing the research to try to find out is way more time and again, you went to school for this, you have a degree for this, this is your expertise. So we will trust you to do this. Yeah, because
27:08
it’s mutual. because trust me, I’ve thought about making products and my products did not look like yours, I’m like, forget it, I’m just gonna spend my money and buy the product. So the bonus I have to say is while I’m having those consultations, most of the time I’m shopping on the site, when I’m going through talking more about You’re such a such soap, and so, but I’m really thankful for the opportunity to be interviewed here today, because you’re right. People don’t know what they don’t know. And any opportunity I get to talk about intellectual property, to dispel the myths and to get people thinking of themselves as a brand. It’s worth it. So you know, definitely, please reach out if I can help. And I’m Evans IP law everywhere. And just as you are happy to get people’s, you know, I can feel it through the computer that people are thinking, Hmm, I didn’t even know this. So it gets you thinking, because if you ever decide to sell your business, or someone wants to buy your business, because you don’t have anything proprietary in terms of a patent, they’re buying your trademark, they’re buying that brand. So that’s what you have to think about. And if you don’t have that protected, your business automatically is not worth as much as someone that has all that so I can buy your email address and your formulas. But I want that name, because you’ve already sold a million dollars worth of products or whatever that number is. So definitely taken under consideration for sure.
28:35
And one, one good example is you know, Burt’s Bees being bought up by Clorox, you know, that they’re paying for that, you know, for that. And so you know, you know, think about as an exit strategy, even you know, if you decide that you do want to sell your business how much more it’s worth, because you’ve done that. So you know, again, it’s another business decision. Andrea, this is so great. All these links and all these things to you will be in the show notes so people can get in touch with you, they can have a consult with you, on Everybody, please, even when you jump on Andrea say please get on her subscribe to her newsletter, because you’re going to get a ton of information there too. So, Andrea, thank you so much for this, like I said, we could go down a rabbit hole and maybe one day we will,
29:18
hey, let’s do it. And thank you for the opportunity. And I just want to say, you know, to all the makers seriously, everything starts small and everything starts with just a simple idea. And the difference between people who have grown, or people who are making a lot of money doing what they love is they took action. So I definitely want to encourage you all to take action and I hope that this inspires you to invest in your idea. That’s my trademark. So let’s make it happen.
29:46
Invest in your idea. This has been great. Andre, I thank you so much. This is awesome. And I you know, for everybody listening, this is for you. Don’t be afraid to ask those questions because we don’t know. We don’t know. definitely talk to Andrea. And we’ll see you next time on two hands made this
