The following is an edited transcript of my video 3 Things I Learned in Law School That I Apply to Trademarks Every Day.
It has been more than 25 years since I graduated law school (!) and I was reflecting on some of the lessons that I learned in law school that I apply to my trademark work every day.
The first thing I learned in law school is that the practice of law and the connection with entrepreneurs is tremendously underserved. The majority of big law decisions, cases, and court filings relate to big corporations. They have the money. They pay the big law firms. That’s how the world works, unfortunately.
So small businesses and entrepreneurs—while they are the backbone of the economy and of many communities throughout the United States—that connection to working with lawyers is not nearly as strong. They don’t necessarily know about the law… or know what they don’t know about the law. They don’t necessarily have a lawyer on retainer, or they don’t necessarily want to work with a lawyer until they are in a difficult situation. I’m always working on spreading the message of trademark protection to more entrepreneurs and thinking about that all the time.
The second important thing I learned in law school that I apply every day in the world of trademarks is that billing by the hour—which is what most law firms do—is silly. Billing by the hour means that time is the controlling mechanism, and that time is going to impact cost. It’s going to impact decisions. It’s going to impact strategy. Since day one in 1999, we bill based only on flat fees, because we are charging for the value. Of course, time is a factor in the overall project, but we want to bill based on our experience, our service, and the value that we’re providing to our clients. We fight for a trademark application, whether it takes 2 hours or 20 hours, it’s the same flat fee, because we’re charging for the value of our service guiding through that entire application process.
Third and finally is that I begin to realize when studying law, that on one hand there is the law: the statutes, laws, court opinions, interpreting them, and the facts of any given case or item. On the other hand is persuasion. And persuasion is really the important part. Who’s going to do a better job taking the facts, and persuading a judge, a jury, a trademark examiner of the outcome that is desirable? And persuasion often means telling a story. You see this in opening arguments, closing arguments, or in trials and litigation. What I’ve come to realize is that this story applies to the trademark application process as well. We’re telling a story for a brand and in strategizing how to best protect that trademark and sometimes how to navigate it through the obstacles at the USPTO.
We’re essentially telling and writing a story for that brand so that brand becomes protected. I think all of this is because I majored in undergrad in anthropology—this for me is really connecting that anthropology, liberal arts background to the more rigid concrete legal training and focusing on the story. A trademark application is really a blend of an art and a science. And where that blend really comes through is the story. Twenty-five years after graduating law school, I am still reflecting on all that I learned.