Last month, an article in the Wall Street Journal discussed the continuing rise in hourly attorney billing rates, at least at the top: Legal Fees Cross New Mark: $1,500 an Hour. While these rates are, I presume, rather extreme, they highlight the fact that most of the legal world still operates on an hourly basis.

Every single trademark application I have filed since 1999 – more than 3,000 of them – has been on flat fee basis. Even within the real of flat fees there are a variety of options. My flat fees generally include the entire application process. If the application takes 20 hours, it costs the same as if it costs 2 hours. If the application gets approved right away, great. If it requires writing multiple briefs to the USPTO, the client doesn’t need to worry about an additional cost for that potential which cannot accurately be forecast. If the application takes nine years – yes, nine years! – it is all included in the flat fee.

How am I able to do this?

I assume the risk – and spread it out among all the applications – and build efficiency mechanisms to reduce the time needed. I can afford to do this because I handle to many trademark applications, because it is the overwhelming focus of our law firm’s work.

Beware of flat fees that are not inclusive. A flat fee to file an application is not the same as a flat fee for the entire trademark application process. Because 90 percent of the time, or more,  there is additional work needed after filing. That work could be straightforward, but it could be complicated and time consuming. If the flat fee is only for the application filing, how much might be due later?

Here is an example of why I believe my truly flat fee best serves the client – even if the flat fee that includes more services (the entire application process) is higher than the “initial flat fee” for filing charged by others:

A potential client contacted me. They had already spoken to another attorney who offered to file a one class application for $X plus the USPTO fees.  The lawyer’s fee included responses to non-substantive objections to registration by the USPTO. But in the event that the Trademark Examiner makes a substantive objection to registration (likelihood of confusion, merely descriptive, etc.), the fee was not only not included in the $X, it was not even listed or estimated.  It represented a total unknown.

And so I responded to the potential client, verbatim:

The devil is in the details.  His flat fee covers “responses to non-substantive objections.”

 As you can imagine… substantive responses, when necessary, are the more complicated and time consuming ones. My flat fee includes them.  

If uncertain bills, charges to copies and faxes and mailings, and less incentive to meet your objectives in an efficient manner are what you seek, feel free to seek firms that still bill hourly. If you want a firm which is forward-thinking, technology using, and partnering with client to find solutions that make legal and business sense – at a value based flat and predictable rate – you know where to find us at Erik Pelton & Associates. We’ve been practicing that way for more than 15 years.


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