Politicians seem to love to talk about small businesses. You hear it time and again from both sides of the aisle: Small businesses are the lifeblood of America. Small businesses are the backbone of America. They are also the head, shoulders, knees, and toes of America. I find it hard to believe that these comments are sincere considering they are coming from the people who oversee a system that clearly favors giant, multinational corporations. Because the legal system is set up to favor individuals and organizations that have more money.
Examples of this pop up all the time. Peter Thiel was able to essentially pay for Gawker’s annihilation by dragging them through a lawsuit he could afford and they could not. I know some glass blowers who have a shop in the Hudson Valley who sold a piece of theirs to a Crate and Barrel scout and direct copies ended up at the retail chain soon after. They didn’t even bother removing the artist’s signature from the mold! Urban Outfitters is notorious for stealing artists’ work. And unless you have a ridiculous reserve of cash to finance a lawsuit for damages, the best you can do is send them a cease and desist.
In a fair world, these artisans should be able to seek compensation for the theft of their intellectual property. But it’s simply costs too much, and the corporations they are up against have unfathomably deep pockets.
This happened to us recently. We had a trademark taken from us by a larger company simply because it was not worth fighting. Here’s how this bullshit goes down:
Rock Candy Media, our Austin-based marketing and advertising agency, was founded in 2009. Ever since then, we and others familiar with our brand refer to it as simply “RCM.” The three letters abbreviation has exactly half as many syllables and is way quicker to type. It soon became synonymous with our name, but at no point would we presume to own those three letters. We didn’t have to pay royalties to sing the ABC’s growing up. How could three letters of the alphabet come together to form a single piece of intellectual property?
In 2016, we trademarked “Diet RCM” as a sub-brand for certain marketing products we were experimenting with. Here’s the logo for that, which is basically just the word “diet” placed over our normal logo.
It’s 2018 and someone wants to own those three letters and, in doing so, invalidate our trademark. A large real estate firm based out of California also shares the acronym RCM. Their initial attempt to trademark the abbreviation was rejected because the trademark office saw it conflicted with our “Diet RCM,” which had been registered for two years.
That was not enough to stop them. They petitioned to cancel our trademark. The first round of discovery is then put on us to prove all the instances we’ve used it, and that’s not cool. They are betting we don’t have the resources, and just defending our own trademark we own would start at $7k that was not budgeted for.
Fighting them would require us to gather every bit of evidence that Diet RCM is an active part of our branding and marketing. The time it’d require to pull together evidence alone would be a huge opportunity cost in terms of billable hours lost. On top of that, we’d need legal representation. A consultant assisting us with this matter referred us to a good lawyer who requested a $5000 retainer. That might be a totally fair price for such a lawyer, but the value of our trademark did not justify the expense. After all, we are a branding agency and can come up with a new name and logo fairly easily.
So the big company wins by default. It’s not that they have a better case or deserve the trademark more. They simply have a lot of money and seem to think trademarking their acronym will be valuable to them. Of course big companies can wield their outsized power and influence in all sorts of other ways, but this seems like a good reminder that small and medium sized companies are not competing on a fair playing field with these assholes around.
The worst part for us is now we can no longer publicly refer to ourselves as RCM. Here’s what our consultant said:
“We are legally entitled to use ‘Rock Candy Media’, but we have no legal right to use ‘RCM’…We must always remember that we could be warned by others to ‘cease and desist’ and threatened with legal action if we do not comply. “
We will fight the good fight but we won’t dress it up as pretty. We’ll also keep you informed if any other bullies of small business show up at our door.