March 12, 2015

Selling the Sizzle – a Recipe for Legal Success

by Guest Blogger

All this talk about Pork Week has increased my consumption of barbecue and bacon, replacing the soundtrack in my mind (cue 80's music) with the familiar sound of the accompanying bacon sizzle. I experienced the flavors, smells, and business of barbecue last week while attending the National Barbecue Association (NBBQA) National Conference and Trade Show. Attendees learned about a variety of topics pertinent to any growing business, from marketing and social media to consumer trends and retail distribution strategies. Protecting your trademarks and copyrights can also play a vital role in the growth of your business.

While attending the NBBQA, yours truly ended up providing the legal presentation when the scheduled speaker was snowed-out. Here are 5 tips to help you Sell the Sizzle of your business – whether barbecue related or otherwise.

1. Do you have a good name, slogan and logo?

Since this is Trademarkology, we start with your trademarks. You need a name and slogan that sets you apart from the crowd, cuts the clutter, and conveys positive messaging about your brand. Avoid generic or descriptive terms in your brand, or at least add a distinctive, non-descriptive term to pull you up in the search engine ranks. Do your homework to make sure no one else is already using the mark – even if not registered. Then, apply to register your mark with the U.S. Patent and Trademark Office (USPTO). Experienced trademark counsel can advise you on the strength of your mark, the scope of enforceability and protection, and registration and clearance. Use your mark in different or bigger font to set it apart from other text in your marketing, and use the trademark symbol - the superscript "TM" (products) or "SM" (services) - to provide notice that this is your trademark. You can only use the Registration Symbol ® if you have received a Certificate of Registration from the USPTO.

Logos Prepared Two-Ways - is Your Design Copyrightable?

If you have a cool graphic logo, it may also qualify for copyright protection. Although word marks and slogans generally do not get copyright protection by themselves, graphic designs and logos can meet the modicum of creativity required to secure copyright protection. Product labels, web content and other advertising materials, photographs, books, software code, videos, and the like may also be protected by copyright.


Does your business have secret formulas, recipes, methods, or customer lists? If so, what are you doing to actually keep them secret? If you want trade secret protection to apply, you have to take steps to shield the information, such as marking the information as confidential or restricting access to only certain employees who need to know. Don't make a binder of "secret" recipes or formulas and then casually leave the binder on a counter for all employees to see. You also need to educate your staff on what you think is confidential and tell them appropriate ways to use this information. Trade secrets can be protected forever so long as you keep it secret.

If You Want a Patent – Get a Lawyer Before You Squeal.

On the flip side of trade secrets, your secret formula, product design, chemical composition, mechanical design, and sometimes the method of manufacturing or doing business could qualify for patent protection. Be aware you have to disclose the secret sauce of how you do it in order to file a patent application. You get a limited monopoly for approximately 20 years. To be patentable, it must be novel (meaning never been done before), and non-obvious. If you want patent protection, you have to do it on the front end. Once you start selling a product or tell someone outside of a confidential relationship, you may not be able to get patent protection. There are some exceptions for disclosures made less than a year before you file an application. For more information about the patent process, visit the USPTO site.

Contracts – Seal in the Flavor.

The final ingredient in your recipe for legal success is contract protection. If you hire a graphic artist, web or mobile app developer, photographer, or other consultants, you need a written contract. Under copyright law, the owner of the content is deemed to be the person who physically creates the work, regardless of who pays for it. If you hire third parties or consultants to help with a project, use a written agreement confirming that your business owns the work product, including any copyrights, trademarks, trade secrets, and patents. This is also a good idea for your employees. In either case, a contract can also address the proper use and protection of confidential trade secrets and other proprietary information.

If you are now hungry and are hearing your own musical montage of sizzle, find yourself some barbecue and chow down. If I have put you to sleep, then you can watch this "Sleep Sounds" bacon video and let the sound of the bacon be your white noise.

The lawyers at Trademarkology provide trademark registration services backed by the experience and service of one of the nation's oldest law firms.