By: Timothy Fitzgerald Young
Trademark law is little bit like tax law; few understand it and there is an industry of accountants, government employees and attorneys dedicated to interpreting, litigating, and resolving conflicts. For small and large business owners alike, trademarks are one of the most valuable tools one can utilize to protect a company’s value, brand, reputation, and customer goodwill.
A week ago I discovered that Huffington Post and Chipotle restaurants had joined forces to launch a new blog about food policy and sustainability called Food For Thought. They also are utilizing a logo that has a shockingly close resemblance to mine. The fact that we have had a trademark for that name and mark since 1996 appears to have been overlooked, or ignored. While our company produces specialty organic food products, we also tend an associated blog, newsletter, FaceBook Page, YouTube Page, and more that are dedicated to our mission: “Creating and raising awareness around just and sustainable food.” For many small business owners this is a looming dilemma, and in some cases a tragedy, that can pop up out of nowhere.
In the trademark world, the burden of enforcing trademark rights is on the shoulders of the trademark holder. This, of course, allows large corporations to encroach or outright steal the ideas, goodwill, and brand of small companies that don’t always have the deep pockets of the big guy. In my case it would be AOL/Time Warner–the parent company of the Huffington Post–and Chipotle Mexican Grill who have used my company’s name and likeness. The shear magnitude and presence of these behemoth corporations in the world will suck up all the search engine optimization for my name Food For Thought and banish me and my company’s 18 years of hard work to the shadows of the world wide web. Size matters, especially when the big guys engage in unfair practices.
What many people may not realize is that a trademark, and its associated brand, can constitute the single most valuable asset of a company. Sound like a stretch? Well, over the years I’ve had many inquiries of interest in purchasing my trademark. Some were quite generous; some were simply fishing expeditions. A traditional company valuation, however, including adding up all my assets (buildings, inventory, product recipes, web sites, profits, trained staff, etc.), wouldn’t come close to the offer I had a few years ago from a large global corporation. They said, “You can keep the company, we only want the trademark.” In the end I couldn’t sell my company to some global entity that was going to make organic cheese-puffs or some other green-washed product that would violate my values. But it did serve as a lesson, and wakeup call, about just how valuable brand and trademarks are to a company.
One of the greater areas of confusion about trademarks has to do with what can be registered and what it means to do so. Simply put, you can register any term or symbol in a variety of classifications so long as they don’t conflict with another use. Even if you don’t register your trademark you have legal standing, according to common law trademark, so long as you are first to market with a term. So, even though I registered Food For Thought with the U.S. Patent and Trademark office in a range of food classifications, the fact that I was writing a food related blog well before the Huffington Post means I have rights associated with my Food for Thought blog. This helps protect a brand in other related market activities and helps protect against consumer confusion.
It is a tough world out there in trademark land for the small business owner, and in the end most trademark issues are about business ethics. Legal standing aside, when large companies engage in this kind of activity, it calls into question the true ethics and culture of those companies. Therefore, despite their public proclamations of integrity and support for the little guy, their actions are a window into how these large companies really operate. Are they wolves in sheep’s clothing? The jury is deliberating.
For my family, we’ll keep on fighting for our rights because it’s all we got. Like most small business owners, my wife and I are not awash in income. There is no college fund for my kids, no retirement fund that will set us up for the last few decades of our lives. We’ve invested everything in our brand. Like many of my fellow small business owners we have taken on debt and second-mortgaged our home to build our company. We’ve paid graphic artists and branding agencies to create and design our logos, and attorneys to register them. We have paid photographers to capture our product for marketing and web pages, and the list goes on. Trademarks are the symbols of our companies, and in small businesses especially, they encapsulate the reputation of the owners and their staffs.
We are small business owners. We are protective of our trademark–our brand–because when we look down the road it is the only economic security we, and our staffs, have.