It’s inevitable. Newlyweds who plan eventually to start a family will start talking about baby names. I find the statistical trends interesting. How a girl’s name like “Brittany” can go from trendy, to commonplace, to a “stripper” name (apologies to those with loved ones with this name). So I was fascinated to learn about one of the newest trends in baby names: Firearms trademarks!
According to a recent report in the Daily Beast:
In 2002, only 194 babies were named Colt, while in 2012 there were 955. Just 185 babies were given the name Remington in 2002, but by 2012 the number had jumped to 666. Perhaps the most surprising of all, however, is a jump in the name Ruger (America’s leading firearm manufacturer) from just 23 in 2002 to 118 in 2012. “This name is more evidence of parents’ increasing interest in naming children after firearms,” one commentator writes. “Colt, Remington, and Gauge have all soared, and Gunner is much more common than the traditional name Gunnar.”
When I cheerfully reported this to Karmen, her instant reply was: “No, honey, we’re not naming our first born ‘Hornady’, OK?”
My favorite baby name story is the remarkable trend in “Hillary.” The Social Security Administration tracks baby names, and publishes the data on the internet. During the 80s, “Hillary” ranked around the 300th most popular, and trended up to about 200th (a rank suggesting it’s solidly popular, but not a hot trend). By 1992, it had risen to #132, but just a few short years into the Clinton administration it had tanked, and is now barely in the top 1000.
I suppose “Adolph” was similar in an earlier generation.
And in case anyone is looking for a hot trend, don’t follow the Hollywood stars, check out fifty-something patent attorney names!:
Here’s something much more serious from a respected business publication. This one surprised even me. I’ve been saying for years how your patents and trademarks are probably the most valuable assets of your company, aside from some real estate and equipment (which may very well be leased). Your key employees can leave, and many of your products are vulnerable to knock-offs.
A recent Fortune Magazine report put a number on what I’ve always been saying, and the number was much higher than I imagined:
Eighty-eight percent of big companies’ value is based on their brands, methodologies, content, training systems, and other innovations, and the same holds true for many smaller players.
Unfortunately, many firms are “asleep at the switch” and don’t protect their assets — to their peril. Do an intellectual-property audit with your attorney to prevent rivals from monetizing your ideas.
–Fortune Magazine, March 17, 2014
Some company executives might respond to this and say: “That doesn’t apply to us. We’re not heavy into brands and innovations, and our value lies elsewhere.” Perhaps this is true. Or maybe you’re just overlooking opportunities to add value to your company. As I’ve said before, some smart companies are digging deep to find ways to add intellectual property assets to their portfolio. Instead of seeing an unsecured brand or unpatented invention as a mouth to feed, they see them as the geese that lay the golden eggs (when their value is realized upon sale of the company).
The Fortune article also reminds us that under the new patent law, Speed Counts. I suppose we could change that to the old slogan from the double-nickel speed limit era: “Speed Kills.” But in this case, it’s not your speed that kills, it’s your competitor’s speed that kills you.
Here, Fortune is writing about the new patent laws that grant rights to the First-to-File a patent application. My readers know all about this, and how a simple and inexpensive Provisional application (aka “Caveman” patent) can be filed in almost no time, and gives you a year’s protection.
Fortune also advises that you make sure you have all the legal contracts in place that you need. Too often, we do business on a handshake, which leaves you unprotected if something goes wrong. If you have an employee, partner, or subcontractor who is working on your technology, and you expect to own the rights to the inventions they help develop, then you’d better have proper employee agreements or other contracts in place to make this actually happen. The same applies if you’re having others create artwork, videos, or publications that you want to own. Your contract with them must specify that they are creating a “work for hire,” and you will own the copyright.
Your rights don’t do much good if you don’t enforce them. So be diligent about going after those who infringe your trademarks and violate your patents. The Fortune article used the example of how the owner of “We Buy Houses®” has a legal team that goes after violators (presumably those who post signs with their brand on street-side telephone poles). The good news is that those they go after are promising candidates as franchisees or licensees!
The same happens all the time when I send out a cease and desist letter on behalf of a client. Often, my client is willing to let the infringer continue using the brand or patented technology in exchange for a reasonable royalty. My client ends up going to the mailbox to pick up checks, and his important asset is strengthened, not devalued by a lack of enforcement.
In the words of Fortune:
You’ll be better off with seasoned pros in a boutique law firm than with inexperienced associates in a giant firm. “The quality is better and cost is lower if you can work with senior partners who have been doing patent prosecution for a long time,” says Andrew Levi, founder of Dallas digital marketing and analytics firm Blue Calypso. He has used that strategy to obtain and protect five patents, with six pending — vastly increasing the firm’s value.
I’ve heard new clients complain about how their old law firm shuttled their cases off to some greenhorn right out of law school, maybe after the guy they used to work with retired. I’m proud of the fact that I’m responsible for the complete strategy plan for every patent I file. I have a great team, and they help gather up the documents and put together the drawings and details, but with my 24 years in practice (half that primarily in the firearms industry) my clients get the full benefit of my experience. I also have some excellent outside litigators I work with, so you can have high-end pro-gun muscle when you need a credible threat that you might take an infringer to court.
Frankly, I enjoy this work so much that I have no plans to retire any time soon. Maybe in 25 or 30 years, our hypothetical daughter (Picattinny Langlotz?) will be ready to take over the practice. Meanwhile, I’m going to be here for at least a few decades.
I had a first year law school professor who was an eccentric old former Chicago criminal lawyer. He walked with a stylish cane, and had a white handlebar mustache, stained with cigar smoke. I remember in the 1987 stock market crash how he arrived to class 15 minutes late (unheard of), explaining that he had to do some buying while everyone was panicking. He made a lot of money that day.
In his office, my professor kept a collection of murder weapons. One was a brick. It looked like any other, but this was a tool that brought someone to his demise. One day a student asked about whether he really knew if his clients were innocent or guilty. He said that the innocent ones reacted to a guilty verdict with uncontrolled panic and horror, while the guilty accepted their fate calmly, or with anger.
That old story came to mind when I was thinking about a situation that has been coming up often lately in my practice. We send a cease and desist letter to a patent or trademark infringer. We do this only when we’re sure of the matter, because no one wants to get into a dispute they are likely to lose.
The funny thing that’s been happening lately is that the response from the most egregious infringers is one that changes the subject: “Why didn’t you reach out personally instead of having your lawyer send a nasty letter?” Mind you, these are grownups who have spent decades in the business, and have probably been in their share of lawsuits.
But a one page letter advising them of my client’s rights, and the need to discontinue some infringement seems to send them weeping for the lost civility of our industry. I think it’s just an attempt at a distraction, to change the subject.
My letters are usually pretty respectful and professional, not needlessly threatening. Sometimes, I even make them as gentle and gracious as the famous “Jack Daniel’s Cease-and-Desist Letter”. My number one objective is to get the recipient to do what my client wants them to do. Sometimes that means gentle, sometimes that means threatening.
Usually, all my client wants is for the infringement to stop, not a big payday of damages. Just say “sorry” and we’ll probably be pretty flexible to help the infringer’s transition to be relatively painless.
The reality is that to preserve rights, it takes more than a friendly phone call or email between company owners. That’s fine at the outset in some cases, but if there is going to be a dispute, the damages start when notice is given, and that means a delay, “just to be nice” , resulting in a patent or trademark owner giving money to his infringer. So if you stumble onto the rights of one of my clients, please forgive us for having to be a bit formal about an important legal matter.
I’ll be happy to buy everybody a beer when it’s all worked out!