Why You Should Invest in Trademark and Legal fees, Now?
에 게시 됨 04-09,2018, 에서 11:31 am.

Law offices are businesses. We have budgets and overhead costs. We have payroll. We have to buy office supplies, pay the phone bill, and order new printer toner. Like other business owners, we do not want to incur more charges than we need to, especially for things that feel like long term investments, additional insurance, or just one more fee. I say this not to garner sympathy, but to demonstrate that we feel the pain of our clients when they balance their books.


On a related note, I saw a study once that said that the law is one of the few professions where being a pessimist is beneficial. This is because lawyers must consider the worst-case scenario in order to best protect their clients' interests.


One area where these two aspects collide is in trademark protection. When everything is smooth sailing, it may not feel like you need additional government protection for your brand, but the moment you hit trouble – whether someone is creating new designs that copy yours, in an attempt to leech off your business, or whether your deal with your manufacturer or distributor went south and your products are being sold without your permission – you will see the value of protecting your intellectual property first. Even if you have a breach of contract claim or a claim for stolen property, your ability to recover (i.e. stop the infringement and get money in a lawsuit) will increase if you have a valid registration.


Trademarks serve two functions: they are source indicators, so you know who you are buying from, and they are an indication of quality. Different jurisdictions around the world have different requirements for registration, and for challenging a mark that you think infringes yours. In China, for example, if you are late to the game and someone registers your mark in their name, you will have to prove that your mark is famous somewhere else before you can have their ownership of the mark canceled, and register yours instead – incurring legal fees to cancel the other company's mark, and to register yours instead. If your mark isn't famous in another jurisdiction or if you aren't able to cancel the other company's registration? You might be out of luck.


In the past few years, China has strengthened its intellectual property protections. Coffee lovers are less likely to see “Buck Star” branded coffee shops during their morning commutes as a result of these strengthened protections. That being said, many brands are simply not iconic, and if you are a smaller fish (or mermaid), or just getting started, you may have to rethink your branding – and pay more to your graphic designers and marketing team to launch the new brand. Are you seeing a pattern here?


In addition to paying less money in legal fees by registering sooner, rather than later, if your trademark is infringed, you will have more options that can be deployed, which can increase the amount of money you can ask for and win in a lawsuit, and might even decrease the amount of time (and fees) you spend in the process. For example, if you have a trademark registered in China that is being infringed, you can request assistance from the Industrial and Commerce Administration Bureau (the AIC), which investigates these claims at no cost to applicants. If a report of infringement is found, this is great evidence – that you did not pay for – to take to a civil court to ask for a court judgment. In fact, the AIC also has the power to refer infringers for criminal investigation, which provides even greater deterrence.


If you have not done so yet, you should strongly consider registering your trademarks and intellectual property in China if you plan to participate in the Chinese marketplace, if your products will be made in China, and if your products will pass through China to other jurisdictions. In fact, the first time you start thinking you could possibly expand into China, you should seriously consider speaking with a lawyer who specializes in Chinese trademark law, to get a better idea of where trademark registration should fit into your timeline. An experienced trademark lawyer will help you plan your strategy for protecting your goods in China, and will do the paperwork necessary to make sure that you have as much protection as possible for your marks.


One final note – just because a company offers a service rather than a product doesn't mean that what they're selling is real. There are many organizations that advertise trademark services at cheap rates, but then don't actually deliver these services to their clients, or delay a long time in filing registration documents. Unfortunately, foreign companies who go this route often find that, not only are they without the valuable intellectual property registration, they are also out the fee that was paid to the fake service company.


Again, lawyers are not (all) bloodsucking vampires – we care about our clients and their businesses, and we want them to succeed. Even though intellectual property registration and legal fees are another business expense, in reality it is both an insurance policy and an investment that could pay dividends in the future. When we advise clients to make this investment, it's not for the sake of lining our coffers. It is because we are looking at the big picture – not just at balancing next month's check book. 

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