Apple has had some difficulties obtaining a trademark for its App Store. The App Store runs on iOS (iPhone Operating System) and Mac OS X (Computer Operating System). Of course, the road bump they have hit has something to do with a little company named Microsoft. Microsoft filed an objection to Apples “App Store” trademark stating that the mark is too “generic”.  Apple shot back at Microsoft and the U.S. Patent and Trademark Office saying that they should be allowed to the ownership of the trademark just like Microsoft is allowed to own the mark to its operating system, “Windows”. Microsoft has had many challenges in the past registering the mark “Windows” due to its generic nature. This sounds to me like the pot is calling the kettle black.

While waiting in line to order delicious Chipotle tacos, I saw a sign advertising Chipotle’s burritos in a box for large parties. The sign read: “THE REALLY BIG NATIONALLY TELEVISED FOOTBALL GAME PARTY IN A BOX”. I figured that they were referring to the Superbowl and I wondered why they just didn’t use the word “Superbowl”. So, I did a quick Google search. The NFL owns the Trademark to the name “Superbowl” and many other marks relating to “The Big Game”. They are very, very well protected. Here is just a brief example of the terms:

Without clear permission of the NFL, broadcasters and other media may not use the following terms or images: “Superbowl”, “Superbowl Sunday”, the Superbowl logo, “NFL”, “National Football League”, “AFC”, “American Football League”, “NFC” or “National Football Conference”.

The Trademarks listed above can be licensed for a price. For example, if you wanted to put the word “Superbowl” on a bag of chips, you would have to pay a licensing fee. So, maybe Chipotle’s ad was their legal teams way of getting around the licensing fee. If so, kudos to you In-House Counsel. OR, was it intentional? The ad does fit very well with their company brand and advertising style. If the concept of the ad was to be clever by not using the word “Superbowl”, I still give props to Chipotle’s legal department and, in addition, their advertising team for legally and with great brilliance conveying their message.

Starting a business from scratch is difficult.  There is usually not enough money to start it with all the bells and whistles you would like.  You are very careful to allocate wisely which dollars will be spent where and maximizing your return for those allocations.  Hiring an attorney is usually the last thing on your list.  The internet allows us all to have just enough information to be dangerous.  The online legal services beckon us with their low cost fees.  What people forget is that you are laying a foundation for your business.  And your business is only as good as the foundation.

Our view when starting a business is to raise the funds that will be required in the first year for a good attorney and a CPA.  An attorney or CPA will be able to advise you as to what type of corporate structure should be chosen for your entity depending on the type of business (manufacturing, distribution, real estate development, investment properties, etc…) you are going into or the industry your business will be in that my cause higher risk and thus the need for more protection from the entity that you form.

A good business attorney will also advise you to search the name and logo of your company.  Before you put money into a logo, business cards, letterhead, website, and production of product make sure that another company does not have a similar name or logo that is already registered as a trademark that will force you to cease the use of your name or logo.

To be continued … Next week: Part II: More than one owner
Followed by: Part III: Safe-guard your product and Part IV: Choosing your Corporate Counsel