Monday, November 21, 2011

Trademark Search First, Then Brand

All too often an entrepreneur requests a trademark search after they have settled on a branding strategy.  Indeed, in many cases, the company has been formed under a particular name, the product and its packaging has been designed around that name, and (sadly) the product has launched sometimes with great fanfare.  Then comes the news that the trademark search turned up another competitive product with a confusingly similar name.  Or, worse still, a competitor has been found with the exact name or one so close as to represent no significant difference.

An expensive re-branding effort follows that news and/or the entrepreneur has to assume some (potentially significant) risk of a trademark infringement suit.  A better way to launch a company and/or product exists.  First and foremost, have a trademark search performed by a professional early in the formation of the company.  That way, your formation documents (e.g., LLC, LLP, Articles of Incorporation, etc.) can be filed under the name that you are likely to operate under.  In addition, the money spent on designing your advertising, website, packaging, etc. will probably need to be spent only once. Not twice, as with waiting to search your company and or product name.

In addition, you will have a smaller risk that your name will infringe an existing mark.  Plus, should an infringement threat arise, you will have the search results and the advice of a trademark attorney upon which to fall back.  While that information might or might not completely save you from liability, it will help show your good faith and that you exercised care in selecting your company’s name. 

The intellectual property attorneys at the Villhard Patent Group would like to guide you through this process.  For more information about us and intellectual property, please see or call us at (512) 897-0399.  

Tuesday, November 1, 2011

World Series, Angels, and Trolls: More on the Value of Intellectual Property

During the World Series, a patent troll friend of mine (yes, I know that’s hard to believe) offered up two insights that I wanted to pass along.  First, a patent or other intellectual property (IP) might be an angel investor’s last defense against a shut out (total loss) and, second, patent trolls only value patents that have been infringed.

With regard to angel investors, he noted that if a play goes bad, sometimes the IP gets stranded on base in a failed company.  Team management may have called in the wrong plays, pitching (marketing) collapsed, and opposing pitchers may have thrown sliders around your entry barriers.  Yet, the IP remains on base.  That IP (particularly, the patents) can be bought and sold.  The angel investor therefore has something left to sell to recoup losses.  Unlike baseball, while the team lost, the angel gets the save and improves his ERA (over what might have been).  That, it seems, explains to me why some angels won’t play for entrepreneurs who have not applied for a patent much less actually won a game (obtained one).

My friend also pointed out that non-infringed patents do not fit a troll’s game plan.  They want an IP asset that they can use to swing for the bleachers, and now.  So, just having a patent to offer won’t be enough to get a troll to swing.  Perhaps, what that means for the entrepreneurs is that if you have a patent that you want to sell (to a troll), you might want to identify a potential infringer.  Then you’ll want to gather information buttressing your argument that the potential target is infringing.  Having a patent attorney on the mound finding and/or reviewing that information for you will increase your odds of getting to the playoffs. 

We at the Villhard Patent Group would be happy to discuss patents and the patenting process with you.  Please contact us for more information at (512) 897-0399 or see