CPG Brand Name Trademark: Learn the When, Why and How
(Listen on Apple or Spotify. Full transcript below.)
securing a brand name trademark has become increasingly critical
If you follow CPG news, you know that securing a brand name trademark has become increasingly critical as large CPG brands and corporations that feel threatened by 'better for you' up and comers in the industry utilize brand name trademark law to try to eliminate the competition.
From the Momofuku cease and desist disaster, to Trader Joe's private label shenanigans, and more recent cases, CPG brand name trademarks proved to be more important than ever in 2024.
The rising importance of brand name trademark protection has led many founders to seek expert guidance on this crucial aspect of business protection. That's why we invited Nicole Swartz, one of the country's top trademark attorneys, and CPG Brand Strategist Kelly Bennett to the Good Food CFO podcast. Together, they share crucial insights about protecting your brand name trademark and navigating the complex world of trademarks.
The Stakes Are High
Nicole's personal experience as a former CPG founder serves as a powerful reminder of what's at stake when brand name trademark protection isn't properly secured. After building her beauty brand to over 1,200 retail locations worldwide, a trademark issue forced her to completely rebrand – a story that changed the trajectory of her career and now helps other founders avoid the same fate.
Timing Is Everything
When is the right time to think about brand name trademarks? Nicole and Kelly share a strategic framework for timing your trademark protection to maximize impact while minimizing unnecessary costs. Their insights might surprise you – especially if you're just starting out.
More than Brand Protection
What many founders don't realize is that trademarks have become more than just legal protection – they're now a crucial business asset. From securing your position on major platforms to strengthening your position with investors, Nicole and Kelly reveal why trademark strategy deserves a spot in your early business planning.
Ready to Protect Your Brand?
In this episode, Nicole and Kelly share:
- Their firm's unique three-step process for trademark success
- Common pitfalls that sink even sophisticated DIY trademark attempts
- Strategic considerations that go beyond legal protection
- Real examples of trademark challenges in the CPG space
Listen to the full episode of Good Food CFO wherever you get your podcasts, to learn how to get actionable advice that could save you thousands in potential rebranding costs.
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Episode Timeline
00:00 Introduction and Episode Overview
06:30 Meet the Co-Founders of Bread and Butter Law
13:04 Understanding Trademarks and Their Importance
18:01 When to Consider Trademarking Your Brand
24:33 The Trademark Search Process and Brand Strategy
27:53 Trademarking Essentials for Future Growth
31:13 Streamlining the Trademark Application Process
34:32 Understanding Trademark Limitations and Challenges
39:05 Navigating the Trademark Review Timeline
44:54 The Importance of Trademarks in Business Strategy
46:54 Bread and Butter Law: A Unique Approach to Trademark Services
52:01 Celebrity Trademark Drama and Its Implications
Full Episode Transcript
This episode of the Good Food CFO podcast is sponsored by Settle.
Welcome to the Good Food CFO podcast. I'm your host, Sarah Delevan, and with me as always is producer Chelsea Stier. Chelsea, what do you have in store for us today? Well, Sarah, I want to start things off with a review today. A new review? Yeah. This one comes from Apple and the user's name is J8ask. And they said, such a great resource. Sarah Delevan, the Good Food CFO.
really knows her stuff. This podcast is full of useful information that will benefit entrepreneurs, especially in the food business. She covers basic finance concepts and how they pertain to real life. She and her producer make an excellent listening experience that is both enjoyable and very educational. Keep up the great work. thank you, Jay8ask. It is always nice to hear that
you are having a pleasant listening or excellent listening experience as you worded it. We can get into some pretty, I'm going to say potentially dry topics here. We are talking about numbers and things. We try to keep it light. We try to keep it fun and personable. So it's nice to hear that it's an enjoyable experience and we really appreciate you listening and rating and reviewing the episode. So thank you so much.
Yeah, because as I will always remind our audience that if you are listening to this episode and you find it helpful, useful in some way, just remember that ratings reviews on the podcast, subscribing on our YouTube channel, these are all like the number one free ways that you can support what we're doing here. Okay. So Sarah, you had a very interesting convo with Kelly and Nicole.
who are the co-founders of Bread and Butter Law. Before we talk about that convo itself, can you fill us in on who they are? Yeah. Bread and Butter Law, as you said, is co-founded by Kelly Bennett and Nicole Swartz. Now, Kelly is a CPG food and beverage brand strategist. based in New York City.
She works with brands to differentiate themselves in the marketplace, discover unique selling points, and create buzz with strategic partners, consumers, and industry retailers. That is important to remember as we talk more about the episode. Kelly is also the host of the Emerging Brands podcast where she interviews people behind the coolest brands in CPG. Nicole is a trademark attorney in Austin, Texas.
Now in 2015, she started a CPG brand that was sold in retailers around the world. She skipped the trademarking process, received a cease and desist letter, and had to rebrand everything in 30 days. She talks about this in more detail in the episode. As a result of that experience, she already was an attorney. She decided to move away from CPG and get into trademark law.
She now protects 1200 plus brands and was rated the number one female trademark attorney with a 99.8 success rate. I was fascinated sort of that we hadn't talked about trademarking to date and I met Kelly and when she told me what her and Nicole were doing, I was like, we have to have you on the podcast because I had not so long ago had some really interesting like trademark experiences.
you know, relayed to me trademarks that weren't approved, like the applications weren't approved, difficult processes. And Kelly and Nicole are approaching this not just from like, you know, how do you fill out the application and kind of work through the process, but what can you do ahead of time to ensure that your application is going to be approved? Trademarks are not cheap. The process is not
fast. So the more you can do to get this right, the more money you can save in the long run, both in attorney's fees, but also in potential rebranding and other associated costs. Yeah. And I do think it was very interesting to hear all of the things that a founder needs to consider before going into this process. And just one of the things that you guys talked about that I thought was so interesting was
the ways in which if I'm a founder and I'm going for a trademark, how do I think my brand might evolve? Have I thought that through? Because that matters to the trademark, that matters to what I'm able to sell, that matters to, I mean, it's just fascinating. Yeah. Yeah. And it had never occurred to me how
closely related those two things are. You are trademarking your brand name, your brand logo, right? And so, of course, branding and brand strategy is closely related to that. But it's one of those things where it's like, how are you guys the first ones to come up with this idea? But I'm so, glad that you have. And it's such a valuable resource to CPG brands. And the other thing I want to say is that if you
like have thought about trademarking or you're not really sure when to do it, Kelly and Nicole really share like when is the right time for a brand to do this? When does the investment in the trademark application make sense for a brand? But also like when you're working with pros like them, the process is really quick. So yes, the application takes, I think they said like eight months or something to get an initial response just because of how much is going through the trademark offices.
But the actual process for getting the information together to submit can be really quick and they've got it down to like three steps. And they also created a trademark checklist. And so I don't think we say it in the episode, but you can download their trademark checklist for free just by visiting the show notes. We'll have the link there for everybody to access. Awesome. Well, Sarah, should we just get to it? I think we should. Let's do it. Good food founders. Let's talk about
cash flow, the metric that truly determines your ability to grow your business. We all know that figuring out your true costs, your margins and projecting cash flow isn't always as straightforward as it could be. When your data is scattered across systems, it is easy to lose track and leave money on the table. That's where Settle comes in. Settle is the only platform built for CPG brands that combines inventory, payments and procurement into one unified system. And they offer integrated financing for your invoices,
to help extend your cash runway. Settle helps you make smarter decisions and keeps your business on track to grow sustainably. Head over to settle.com slash good food to learn how brands like Carnivore snacks use Settle to manage their cashflow and growth. Welcome to the podcast, ladies. Thank you. Thanks for having us. So as I mentioned in the intro,
Kelly, you're a CPG brand strategist. you are a trademark attorney and you have come together to create Bread and Butter Law. I'm so excited to talk about all things trademark and brand strategy and how they go together today. Of course, I'd like to give you guys an opportunity to tell us a little bit more about your backgrounds and how you ended up working together. I feel like, Nicole, maybe we'll start with you, if that's okay. Absolutely. Yeah. Okay. I'm a trademark attorney. I used to have a CPG brand.
We'll get into it. I lost it because of a trademark dispute. I went into trademarks and became obsessed with them. And that's what I've been doing for the past like eight years. And so we've, we've worked with, you know, 1200 brands and I'm one of the top trademark attorneys just in the country. And about, I think like a year ago, maybe a little bit more. Kelly's been in my radar for a while. Like just, we've been kind of in the same orbit.
And it was clear to me like within the trademarking process that one of the things you really have to have in place when you're starting the process to protect your brand is thinking about like, what's your strategy? What is it that you sell? What do you want to sell in the future and things like that? And so that perfectly into Kelly and what Kelly does. Amazing. Well, Kelly, tell us a little bit about it. Yes. And I just want to give Nicole a shout out because she's also my personal trademark attorney and she helped me trademark my own name.
and so many clients I've sent her way over the years. So just thank you, Nicole, because you made it less scary for me and now I'm such a nerd for trademarks. So, and that's totally influenced by her. I am a brand strategist. My background originally was food and beverage. I was a partner of a restaurant. We built two locations, but what really piqued my interest was all the CPG brands we were partnering with.
And one in particular was a coffee brand, Frankly Good Coffee. And over the many years working on the restaurant, got burnt out. The restaurant business is not for the faint of hearts. And I decided to go again freelance and work with brands one-on-one on their brand strategy. And Frankly Good Coffee was the first to contact me and say, we loved working with you at the restaurant. We want you to do what you did for the restaurant for our brand.
And so they were my first client in CPG food and beverage. And I've worked in many different verticals over the last 15 years as a brand strategist. But once I really honed in on CPG food and Bev, my heart, my soul, like everything made sense of what I've always been so passionate about. And I am the type of person that no matter where I travel to and most days you could find me in New York city.
a specialty retail store. This is what I love. Nicole came to visit in New York City. Literally, we went on a specialty grocery food tour, food crawl, and that's what I love. I'm just super passionate about it. What I learned over the years, consulting with brands of what differentiates them, what are unique selling points to what creates buzz, it all also comes down to their brand name and needing to protect it.
pre-launch when you're launching, when you're scaling, fundraising. And so the fit of trademark and brand strategy works so well together. So Nicole had the idea of doing a CPG, food and beverage, trademark law firm. And when she pitched the idea, I said, please, can I work with you? This literally sounds like a dream. It totally makes sense. And that's what we've been building with Bread and Butter.
Amazing. And I will say, Kelly, that your Instagram shows just how much you love CPG and specialty food store shopping. I love following your stories so that I can be introduced to new brands and stuff. Because I admittedly am like, I love CPG. Obviously, I work a lot in it, but I'm such a farmers market girl that I don't do a lot of external shopping, which I think people might be surprised about. So I love to kind of just like
keep an eye on your Instagram and get ideas. That means everything. And I also have a podcast called the Emerging Brands Podcast where I interview many CPG food and beverage founders about their brand story. So that's also to like getting to see people I've interviewed out in the wild, getting product samples, and now having clients on retail shelves, which has been really exciting. But the fact that you're finding brands through my Instagram.
Makes me really happy. That's my goal. thank you. I can also attest to the fact that Kelly was just in Austin this past weekend and I was like, what did you do on Sunday? She's like, we went to a specialty grocery store. I was like, of course you did, Kelly. You didn't even have to ask. Literally, that was my main priority. We were there for 48 hours and we got in a specialty grocery store right before we went to the airport. Love it. Yes. Because you have a bunch of stuff shoved in your...
Yes. Like luggage. Yeah. put it my girlfriend was really great and she carried it for me. yeah, we had like from wooden spoons to snacks to everything that we could fit. That's just what I love to do. Yeah. That's amazing. Okay. So you guys have come together to form Bread and Butter Law and we're going to talk more about like each of your roles and how it does all come together more specifically kind of later on in the episode. But I want to start with
trademark? Like what is a trademark? Why is it important to have? Nicole, you kind of hinted at like protecting your brand. Can you tell us like what is a trademark for? What does it do? Why should we have one? Absolutely. Yeah. So a trademark is all about branding. So it protects your brand name. You can also protect your logo. You can protect the tagline. Maybe it's a product name. You apply for it. You go through the process. And then when you get it, you're able to stop copycat.
from using that same brand name in your industry to sell what you sell. Because obviously it's going to be really confusing if you're on a shelf and somebody's on a shelf right next to you with the same or a very similar name. So that's what the trademark does. It's really the only way to protect your brand from copycats. So if you don't have one, then generally anyone else is allowed to start the same brand as you and you just really have no way to stop them. Does it protect your recipe?
or the product itself in any way? No. No. That's going to be a patent if there's something innovative or unique about the formula. Or maybe it's a trade secret, thinking about Coca-Cola's recipe, just something they've kept confidential for a long time. But it's not going to protect anything like that. OK. Good to know. Yeah.
We hear so many stories like the Trader Joe's ripping off small brands and reproducing the product and just wanted to clarify, would a trademark stop that? It's sort of not necessarily. Yeah, it doesn't stop that at all. Yeah, this is just about your branding and making sure that you are standing out in the marketplace and no one's ripping you off. Because the and the brand equity is the biggest asset that you have. Yeah.
open to it, sharing your experience as a founder and what happened with you I think would be really helpful here. Absolutely. I had a CPG. This is my very first business. I graduated law school and I was already a lawyer, but I was like, I'm going to take a break from the law for a second and start the CPG brand. So was in the beauty space. I did that for two years and we started out just testing the recipe and like
farmers markets and then into festivals. And then we got into retail stores and then we went to trade shows. And then we were in 1200 stores around the world. And then I just woke up to a cease and desist letter in my inbox one day, like sitting in my kitchen for breakfast and I'm check my email. And it's a cease and desist letter from somebody who had trademarked my brand. So they said like, own this brand now legally, like we're the only ones who can use it and you have 30 days to rebrand. And so obviously like I had no idea what to do. I called.
many trademark attorneys that just, know, friends who had referred me to and they were all like, well, do you want to pay $20,000 to fight it? And I was like, I don't have 20 bucks to fight it. Like I'm running a CPG brand, you know? And they're like, well, then, you know, think about changing the name in the next, we ended up negotiating out to like 90 days.
Yeah, it was much cheaper to like just change the name and to like pay $20,000 to just fight it, right? That's not even like winning. That's just having a chance to keep using it. And that wouldn't even let me own it. I still would have to share it with this copycat. Right. So it was like, well, that's, that's not really the right like move. So we decided to rebrand it. And that was just, you know, it was like, we had so much momentum and then having to rebrand is like,
takes all of your focus away from like, do we get new retailers and how do we make our retailers happy? And how do we scale to the next level of distribution and all of your brain power for you and everyone on your team goes into like, what's the new brand name and what's the packaging and how do we find a branding person and having to pay for all of those things again, like it was like, we just paid for branding. We just paid for all this packaging to be printed. And now we've got to do all of that again. We have like photos of like celebrities holding our product and it's like, well, that product doesn't exist anymore. So
We had to contact all of our retailers and tell them like, Hey, 90 days, you're not allowed to sell this product anymore. we'll pay, have it shipped back and we'll send you the new brand new. But it was just, yeah, I mean, it was expensive. So that lesson learned and I became really obsessed with trademarks. Obviously because of that, I was like, that's not going to happen to me again. And it's not going to happen to my friends again. And so that's, that's kind of just when I got deep into it and started talking to other people about that. And luckily I was able to exit the CPG brand and like move into the trademark.
But it just, yeah, obviously it made me very passionate about it because I don't feel like there's too much education about the trademarking part of it. I was like really focused on like, how do I get sales and how do I get followers and how do I get retail accounts? And I wasn't really focused on the legal part of it, which I feel like, you know, that's not the fun part. So I get it. Like that's, you know, not something that I want to focus on either, but yeah, just felt like I wanted more people to know about like, what can happen if you get this? Cause it happened to me and you know, it happens to...
our clients and a lot of other people too. So just talking about it more, I think it's helpful. I think I have so many questions and it's like, I don't know the exact right time to ask, but I'm going to go for it right now. So a couple of questions that are popping into my head that I think like some listeners might have are like, when, at what point in starting your business should you think about the trademark or the trademark ability of your brand? Yeah, that's a really good question. Okay. So I am originally...
from LA. So I have a really woo woo answer, which is like, it's a gut feeling to me because it's like, if you're just testing out this brand and you're like, I don't know exactly what I'm going to sell. I don't know that this is going to be the brand. I'm just trying to get like a proof of concept. I'm just trying to like see if there's traction here. Like that, you don't need to worry about trademarking it. Cause if you had to rebrand everything, it wouldn't be a big deal. Right. But once you know that there's traction and you're like, okay, I see that this can be a real thing. I think especially in CPG, because it's like,
So competitive and because you're, you're investing a lot of money into the packaging and the branding of it. Like, you know, the branding is just so, so, important that I feel like once you know, then it's like, it's time to go and move on it because the worst thing that could happen to somebody else, you know, same thing that happened to me, somebody else files it before you and then they own your brand. And now it's like a whole thing that you, you want to avoid. I think there's, there's like a middle ground there. And for some people that is like before they launch.
Some people are like, want to have only ducks in a row beforehand. And for some people it's like, I'm going to test it and see how it works and stuff like that. So I think once you start to see that there's some momentum there, then you want to jump on it early. Yeah. As a financial consultant, it's like, okay, if you're going to make a big investment in branding, brand strategy, product, packaging, go ahead and do the trademark.
Absolutely, especially before branding. you're a bunch of money, right? Yeah, take care and make sure that it is yours and you'll be able to use it long into the future. Yeah. This is something that we're really trying to educate branding agencies and graphic designers about is have these conversations with the clients and tell them about it, talk about it before they spend a bunch of money on something that they can't ever even use. Yeah. Yeah. That's amazing. Okay. So I imagine that there are some people listening who are like, okay,
trademark sounds important. I might be getting close to the point where I should be thinking about this. I could probably do it myself maybe, or I could work with an agency like yours. What are the options that people could pursue for getting a trademark? And then do you have any sort of pros cons advice around those? Yeah. mean, so I think one option is to DIY it. And I'm pretty honest about
saying like, there's a lot of things that I think you can DIY. Like I think if you know what kind of entity you want to be, if you know you want to be an LLC or a corporation, like that's a pretty simple, it's your name and address that you put into the online form. Like you can, you can figure that out, you know, work with an accountant to like figure out what's the right entity for you. But once you know, then that's simple. Tradeworks isn't really like that because there is a form that you fill out, but there's a whole like secret backend process because they're giving you, it's the, from the U S government.
And so they're giving you like this exclusive right. And so they don't just see like, you filled out the form. Great. You're done. They have to compare it with the millions of other trademarks out there that have already registered and see like, is it too similar to anybody else who filed before you? And that's the part that, that is hard. So to me, it's not really something that you can DIY just because like, it's so hard to get you do it. Like, I just don't think you would have, have a good chance of success with that. And then the other thing I would say is like when with
When you're working with an attorney, like there are certain questions that you want to ask them because part of the process is like this, you know, they review it against all these other trademarks. And so there's usually a lot of back and forth because they might say like, need you to make changes or is it too slow to this other brand? And almost every attorney charges hourly for all of that back and forth. And so you don't really know how much that's going to be when you, when you sign up, right? Like it could be a thousand dollars. could be $5,000. And so, and you're kind of like,
almost like held hostage in a way because you already like invest all this money and now they're like, we need more. And you're like, I guess I got to pay you more. So that's a big question to ask is like, how do you charge for what are called office actions? Or do you have like a flat fee model, which is something that I really believe in the flat fee model, which is like, this is how much you pay and it includes everything that you're that you're going to need within this process. Wow, I love that having worked with attorneys in the past.
And yeah, getting the bill where you're like, hold on, wait a second. I I understood everything that I was paying for and there's a lot more stuff here. Okay. know, I'm on a mission to kill the hourly rate. just hate it. I think it's just so bad. I'm like, tell me how much I'm going to pay and then I'll pay it. That's great. So that's a big thing. Yeah. Also too, to add to what Nicole was saying, most trademarks get pinged, right, Nicole? When you first apply.
So if you're DIYing it, you don't know how to argue. You're not a lawyer, right? If you're doing it yourself. And then also too, if you have an attorney that's charging you hourly, that could become really costly. So something I admire about Nicole, and again, as a client also, my trademark, I remember getting some pings back and she was like, I got it, handled it.
set it up, I already have the argument, and it was such a relief. And knowing that, what is it, Nicole, about 80 % of trademark. Yeah, it's something really high. It's really high. So to have a situation where you could work with an attorney and a team that you know that even when these things happen, because by and large, it probably will, that it's handled for you. Yeah. And that's such a relief. Such a good point. Yeah. And that's not to say that like 80 % of them get denied. Because a lot of people.
get that confused. It's just about getting pinged. It's just about them saying, wait, we need more information or we need an argument here. We need you to change these things. Do you agree with this? There's a lot of back and forth that's part of that process. Kelly, I want to turn the questions to you now because my thoughts are around, maybe you've tested your product, the concept of the brand, things like that. You're ready to move forward. There's going to be a search
for your brand name, right? Kind of testing it against existing trademarks. Right. Is that something, A, is that something that you guys recommend people do early on in the process of working with you? And then is it after that is done that Kelly, you step in and either go all in on their existing brand or perhaps make recommendations for rebranding or changing the brand if necessary? That's a great question because in the past,
Prior to working with Nicole, I would have clients come to me as a brand strategist saying, I have proof of concept, I want to move forward. And then we would get further down the line and then we realize, oh wait, they can't even use this name. We have to go back. So now with bread and butter and just knowing more about the process myself, when I have a client come in, I always recommend if they do not have a trademark, the first thing is we need to run a trademark search because
your brand name informs so much of the brand differentiators and how we stand out to how your visual branding will look, right? So as a strategist, that's always my first question and is the first step in the trademark application, right? You first need to see what is the viability of you being able to use this name. Not too long ago, I had a client come to me and literally we got it quickly realized like,
you cannot trademark this name. It's you just can't, it's not possible. So we went through different names. Nicole thankfully was able to handle her application. And then from there, we were able to edit her whole strategy to make that differentiation with the new name. And then she also had to redo her branding. And so she had just had some really basic branding, thankfully. So it wasn't a huge change. But if you don't take that
first step of a search, it really can cause, like we mentioned with branding, packaging, all of the big stuff. So I definitely recommend that's the first step. And then where strategy and trademark really works so well together is that when you're doing a trademark application, you need to state what are the products and services you're selling now.
and if you're going to be selling any other different products and services in the future. And so when you know, okay, I wanna take this business seriously, this is the brand I wanna build, having that flush through makes a world of a difference because you could have someone saying, I think I'm gonna do this, but maybe not. And it just makes the whole process so much more complicated. So from a strategy perspective, really having a clear
identity of, okay, this is what I'm selling now or, and or if this is what I'm going to sell in the future. Also then having your branding because you're going to have to show proof of use, proof of sale, that this is the brand name, that it's consistent on your packaging. You need that in order to submit your application as current use saying I'm currently using this mark and here's proof that I'm using it. And that first sales date.
using that mark. If you aren't using the mark yet, you could file as future use. But again, you still need to be able to articulate, these are the products that I'm selling now, and or this is what I'm going to be selling in the future. So it's really important to have that flush through for the best way to protect your brand. Yeah, that's such great information. I had forgotten that piece about what you're doing now and also what you're doing in the future, which is
Yeah, you need to trademark for everything you're thinking about doing essentially, right? It's such a balance because one thing about the trademarking process is that you can't add things later on. You can't be like, in a year I want to sell this. I'm just going to add it in. You can't do that. That's why Kelly is so strategic about like, let's map this out from the beginning. That way you're going to be protected for these things in the future. Yeah. How specific is the description of the thing you are selling now and
may sell in the future? Can you give an example of like, is it like food product or So you couldn't say food, yeah, but you could say like hot sauce or you could say cookies, you know? Got But you don't have to say like, it's going to be a gluten-free cookie with da-da-da-da-da, this kind of topping. You could just say cookies. Okay. So you start, maybe you've got like an Italian food brand, you might be starting with pasta and you're going to expand into sauces and-
maybe it deserts or something like that, you want to cover all three of those categories in the trademark application. Right. But it's a balance too, because you pay fees from the trademark office based off of how many different classes. They group things into classes, so you pay fees. You might end up paying a lot of fees if you include a lot of things. That's where Kelly is so great, because she really helps you strategize, like, okay, if this is your timeline and it doesn't make sense to include all of these things, let's include this. These things are similar to these other things.
have to include them. There's a whole strategy part of it that is pretty genius that Kelly's up to in there. Well, I learned from Nicole. And she's made me such a nerd about this. And I think that's why I love trademarks, because there is so much brand strategy that goes into it. And again, really helping a founder flush through this. Sometimes they just need to talk it out. And they're like, OK, yep.
This is what I want to do. This is what I'm going to be doing in the future." And just helping them simplify that and be able to articulate it, it's really rewarding to see someone put those pieces together and then they feel really confident and seen of how they're going to be protecting their brand. I'm thinking of entrepreneurs who just want to do everything. They have so many ideas. And I imagine going through the process with you, Kelly, it's like they can sort pare it down a little bit, streamline, get really focused.
We bring it in, we keep it organized and I get it. I'm a creative too. I look back of my trademark application that's many years ago now. I had so many things under the sun myself because I wasn't sure how it worked, but now understanding the process and refining my own strategy, I'm like, please learn from me. Do it now so that you're not just adding on all these fees and classes and all that stuff.
It's very fulfilling to be able to help a founder do that. Yeah. I don't know if you can speak to this, Kelly, but what is the timeline typically to work through this process with a founder as a part of the trademark process? Well, thankfully, Nicole has an awesome system that we have been working on refining. So we got it down to three steps. wow.
If you follow along our process, we could get you a files and get your application organized within a week. And we, yes, we really have drilled down this process over the last year, refining every email, every call to action. we really, we meet twice a week primarily to go over this, right? And so we try to make it as simple
as possible so that we could take this off your plate. And so as long as you follow along, we could have your application ready to be submitted within the week. And that's something we're really proud of. Yeah, that's amazing. That's really amazing. Now, if someone needed to do a rebrand, obviously that would be an aside and that would take time. And Nicole could also speak to trademarks take
12 plus months to be approved. However, we have really drilled down the application part so that you could feel good of like, okay, this is what I'm moving forward with. And then everything else that you need to do if you want to drill down more of your brand strategy, or if you need to work with a designer to rebranding or start your branding, right? We have a really great network of people that we connect people with for those next steps. So that.
in that your time, you are really moving forward with your brand. So I want to make sure I'm hearing you right. So it's like the application process can still move forward and then all of the work to be done, even if a rebrand is needed, that can happen as the application's being reviewed and potentially getting pinged and argued against and all of that kind of stuff. That's great to know. That's really great to know. Yeah. mean, our main thing is like, we don't want this to hold up your business at all.
You shouldn't wait until it goes through because it does take the trademark office a long time to review it and to approve it and for it to go through the process. But you can still be building and launching and announcing and doing all of the cool things that you do in the meantime. And our goal is that like we handle the trademark part and then like you're out within a week. You don't have to deal with it. We're dealing with it. Yeah. You deal with all the fun stuff. That's great. And again, I want to give a shout out to Nicole because she has over a 99 % success rate.
which is remarkable with trademarks. It really is. so she's very humble, but I love to brag about her. And she is one of the top trademark attorneys in the country, the top female trademark attorney in the country. And she has drilled this down so that she could give you the best advice and insight on that application and feeling confident in moving forward with it. That's really great.
I do have one question on something that you said, Kelly. said the name is not trademarkable for whatever reason. I know sometimes that reason can be it's already trademarked or it's too similar to an existing trademark. But as I understand it, another reason could be this is not a trademarkable name. Can you speak to that a little bit, Nicole, probably? What does that mean? What do you do from there? What if it's your name?
and you want to move forward with your business, but you can't trademark it. The other reason that names can't be trademarked is because they're too literal. If you're trying to trademark the name Apple and you sell apples, they don't want to restrict language. They want for other people to be able to use that. An example might be if your brand is called Lux Cookie.
Like that's, that's literally what you sell, right? You're selling like luxurious luxury cookies or something. So it's like, they don't want anyone to use that. So that's where the trademarkable part comes in. So one issue is like, is it available? Is, somebody else already own it? And then the other one is like, will they like somebody protect it? because like they just don't want to restrict language like that. So it's usually about a literal thing and that can be like an ingredient. So it could be like,
like chocolatey cookie, know, something like that. Or it could be like the quality of it. could be luxury. could be, yeah, something like that. That makes sense. And you can probably spot that from a mile away, Just be like, this is not gonna… I'm like, no. Sorry, not sorry. I'd rather tell you the hard truth. you're… And the one that I'm thinking of that Nicole and I worked on, a client of mine, it was too descriptive. It was…
literally what her product was. So that was something from a mile away. was like, Ooh, I'm going to have to break this to her. But thankfully working with Nicole and understanding the trademark, we did a of searches and she found a great name that was even way better. Her branding is so good. I'm really proud of how far she came. And really that first step in investing in her brand and taking that next leap was finding a better name for it. That's so great.
Yeah. We've talked about this a bit, but I just want to make sure I'm covering all my bases here. Once you've gone through your three, I'm going to call them simple steps to get your application submitted in a week, what can a founder expect, I guess, over the course of the next potentially 12 months as they're going through this process? Yeah. So after you've submitted your application, it takes about eight months for the trademark office to even review it. So there's no way to get it reviewed faster. Sometimes people are like,
Can I skip the line of last week somebody said, can I bribe them? That's like, no, you're talking to an attorney, please don't do that. It's just a bribe a federal agency. So you're just kind of waiting. Like there's no way to get it faster. So you're waiting this eight months, but one of the things we do is like send you a monthly update, like, hey, you have seven months to go. You have six months to go. Here's some things to keep in mind. Like there's a spam email you're going to get at a certain point of the process.
this. There are things you can be, that we'll advise you on. Then at the eight month period, that's when they review it and where most of the pains come in. That's where they might say, we think it might be similar to this other brand. Can you tell us why? It's on you to make your argument. There's factors that they look at. That's a very legal argument that you have to make. They might say, we don't like how you've described your product. You described it as fried garlic and we need you to describe it as like...
a vegetable that might be friendly. There's legal tiki-taki stuff. so there's back and forth there that happens. And then it goes to publications. They put it on a website. Other people can oppose during this process. It doesn't usually happen. It's usually like maybe if Target has a brand. It's like a big brand usually. But if that happens, usually it's just negotiating with the other party. Everybody agrees to stay in their lane. And then it would move on to... If you filed it as you were already using it,
you're already selling products, then you get approved at that point, which is about 12 months. If it was like a future thing that you hadn't started selling yet, but you're going to sell in the future, that's when you would show that you have actually launched a product with it. So you do that then, and then it gets approved. Amazing. Anything you want to add to that, Kelly? Just the importance of doing a trademark search sooner than later. I've met way too many founders who wait.
while they're already launched in retail to think about this. And so I just want to encourage people, as soon as you get that gut feeling like Nicole said that, okay, this is my thing, I wanna move forward, do a trademark search because that really informs you of the small things or bigger things that you need to change now. And it make every step of the process.
even that much smoother because you have so much on your plate when you're launching a food and beverage brand. Like it's a lot, right? And so knowing your name and being able to protect your brand legally is such a huge piece of the pie. So just getting that trademark search done sooner than later. Yeah. I think to Kelly's point, we've both heard so many stories of founders who've been like, I
I put my product in a retail shop. was on the shelf and within a week, somebody saw it on the shelf and tried to copy it. Or I exhibited at a trade show and a couple of weeks later, multiple people had it. So it's just like the more exposure that you get, that's great. But it's also just keep in mind, it's like the more exposure that you don't know who these people are and they're seeing your brand. With Capycats and also getting that cease and desist letter, right? If you did, you've done all this work to get your name.
into a retail, you've created content, you created buzz, you're telling all your friends and family, everyone knows you launched this brand. And say that you're, you know, you're yourself or a small team, that's a lot of work to have to change the name then. And to get new packaging to recreate that buzz, you may really tarnish a relationship with those early on retailers who believed in you and who took a, you know, a risk on bringing you on shelf.
and now you have to take it off and redo the whole thing. That just, it's too much, I think, like stress, right? And so just getting that trademark search done, please. Right. So important. My goodness. So.
I wanted to ask a couple of questions around the difficulties, but Nicole, with your 99 % approval rating, I don't know if you have difficulties. I know what the general difficulties are. I know the general difficulties are, can't always predict what the trademark office is going to do. When we run a search, we're 99.8 % sure what it's going to be, but it's also dependent on...
an attorney at the trademark office who's reviewing it and maybe they look at it differently. And so that's just always going to be like kind of a risk. But I think the other difficulties are like this, this office action stage is really like the key time that you can get denied. Again, like if you're DIYing that you're not going to know how to respond. Like it's, it's a very legal argument that has like legal factors or spell factors they look at. And there's things that they want and things they don't want.
you're not going to know how to respond. You know, because they might say, okay, are you similar? You're a cracker brand. We think you're too similar to this cookie brand. And you might be like, but we don't even sell cookies. And what I know is that it doesn't matter. We got to look at industry evidence of like, what do other cracker brands sell? What other cookie brands sell? And so there's been evidence of all of that. So there's all these things that you really need an attorney to help you kind of navigate that part. But again, it's a balance because you don't want to pay hourly for somebody to
have to go on the internet and find evidence of cracker brands and cookie brands and submit hundreds of those, right? Like that's going to be expensive and kind of silly. So I think that's kind of like where the difficulties lie. Yeah. I was aware of someone who submitted the trademark application. You know, there was a response back from the department, the agency, whatever it's called. And they were like, okay, you know, we want you to do these things or, you know, there were like requests or requirements or, know, like.
need to drop this," or I don't remember what it was exactly. The founder was like, okay, yes, we'll do it. Then that got sent back in and then it came back with a whole different – I'm not going to say list, but other things that then needed to be changed or that they weren't willing to include in the trademark. Do different people review the same application within the agency usually. It's usually like there's – it's so
freaking complicated, like the rules of it. Like Kelly and I were talking about, like, you know, we have meetings of like how to structure people's trademarks and things like that. And we'll be like, it's, it's always like, we're always learning something new. I've been doing this for eight years. Like it's so, so complicated. So it's not a different person. It's just that like, when you change one layer of it, it's like an iceberg and there's like all these other things that it can trigger. Like, okay, you said this, but then if you, if you change even a comma or a semicolon, it's going to change eight other things.
So it probably just triggered something like that. I see. Well, that's frustrating. I know. It's really annoying. But then that goes back to knowing how to argue and sort of what to commit to or agree to or how to go about it so that maybe you're able to prevent that avalanche of Exactly. Yeah. Because sometimes they'll also, it seems kind of innocent when they ask you. They'll be like, oh, do you want to just make this simple change?
And you'll be like, yeah, that sounds really great. And it's like, I, you know, like, you're like, ah, no. So it's, sometimes it's not as innocuous as it seems. Oh my goodness. Well, tell me a little bit more about, I mean, do we have anything else we need to say about trademarks, the process, what we want founders to know before we move forward? I think it would add to something really quickly, which is like, I think like there's, there's two other pieces to the trademark part of things. So it's like, if you're looking for funding,
Or if you're looking to sell the business in the future, the trademark is going to be a key piece of that because investors and buyers are both going to be doing due diligence. And one of the things that they always, always, always want to see is like, do you have a trademark? Like that's on the checklist a hundred percent. So that's a key part of it. And then also like, if you're ever interested in selling on Amazon and selling like DTC like that, Amazon requires you to have a trademark.
to get on their brand registry so that you can do like fulfilled by Amazon so they'll ship it out for you. Like if you're trying to sell on Amazon at scale, you need their trademark to do that too. So just some other times when it might make sense. That's great. Additional info. Thank you. I had no idea about that. That's a great point. Really interesting. So, okay. So bread and butter law, which like the name is amazing by the way. So perfect. It speaks to Kelly's brand strategy because it's all Kelly. Thank you. I always say.
This was my peak of naming something. I will never top this, but I'm so good with it because bread and butter, like the whole thing when it came together and I pitched a whole list of names and when Nicole picked that one, that's the one I wanted too. And she was like, bread and butter. Oh my gosh. And I was like,
protect your bread and butter. And she's like, that's the name. And it was so exciting when we landed on that because when you're working on brand names, have lists on lists. I mean, probably 100 different name ideas. then once we, Nicole did the trademark search and we're like, okay, it looks good. And then we moved on to branding and everything just really came together when we chose that name. Kelly's a genius.
That's all. So when someone comes to bread and butter law, tell us about how the service or services are structured. Because Kelly, you have a separate, obviously, CPG brand strategy business. I just want to kind of understand how does it all work together. How does it all work? Yeah. Totally. So the first step is, like we've said, run a trademark search.
And what's really awesome, what we've been refining is that now having a call with Nicole to really understand your results. And that's huge because sometimes you could get trademark results, searches back and there's some notes in there and feedback. And then you're looking at it you're like, I don't understand what this all means. So can I get it? What do you think? And so...
It's amazing that Nicole has made it so much more accessible to be able to think through it and to speak to an attorney once you have those results so that you feel really confident to either move forward or if you need to make changes and go back to the drawing board with names. And so that's a really great aspect of bread and butter that you have that support. And then once you know, okay, this is the application I wanna move forward with,
That's when it gets pinged to me. And again, through the lens of brand strategist, I'm looking at your application of talking through what you're selling now, what you sell in the future, how do we simplify, refine, articulate it, making sure that you're proof of sale. So that's looking at your labeling, if it's a retail shop also with your CPG brand, making sure that it all matches. The trademark office, what I learned,
Unfortunately, clients have learned the hard way is that even a comma makes a difference. Right. And so everything needs to match exactly. And thankfully, this is where I am such a nerd and I'm always looking at things matching perfectly. And so I review everything, make sure that it matches up to your application, anything that needs to be changed. That's where also Nicole has spoken to so many designers and graphic designers.
making sure that they understand the importance of that too, right? So all your branding then needs to match up and working with a strategist through that is a unique feature of bread and butter because usually you're talking to an attorney or an assistant and you know, they probably aren't as much of a nerd about brands and no CPG as much as we do. Like we literally live, and sleep this. So I think that is again, a unique aspect of it. And again, simplifying the process, walking them through it.
And so we try to have that wrapped up for them within the week. And then after that, as they go on to next steps, if they want to deep dive into their brand strategy, then they could work with me one-on-one. We also have a great store on our website, a great shop with different templates of contracts. for pre-launch launching, scaling, they could find really great templates from.
website policies, LLC, how to work with influencers, how to work with a wholesaler, manufacturing. So we also have that in there too. So that as they're going through that next stage of waiting, which you need to keep busy while you wait, we have so many great resources there also with bread and butter that specifically speak to CPG food and beverage.
Yeah. I was perusing that the other day and I didn't know it was there prior to kind of going to the website before we got on our podcast recording and checking it out. And I thought, this is so good because the practice of going to another CPG brands website or borrowing someone else's contract, not a great practice. Not a great practice. Having templates, I'll call them, that are created by an attorney, I just think is such a great resource. And I think they're all extremely reasonably
priced as well. So why don't you call out the website name right now just to make sure that everybody knows where they can go to find information and those contract templates as well. Breadandbutterlaw.com. So easy. Everything's there. also Instagram at Bread and Butter Law. You can find us, ask us a question, slip into the DMs. We want to have people feel really engaged and seen as a founder.
and to talk to a friendly person who really cares about what they're building and what they want to protect. And so we're more than happy to help direct someone to the best next step. Kelly's also talks a lot about really fun brand names that she likes on Instagram. So that is so fun. And I like to talk about celebrity trademark drama on Instagram. if you like any of those things.
Definitely come hang out with us on the Gram. You made me to the punch because I was going to say that we had talked about Kelly's Instagram. That's with Kelly Bennett, I believe. Yes. I was going to say that since being introduced to you, Nicole, I started following you. I love your stories and reels or whatever they are about the trademark drama of celebrities. The one I was just sharing with friends was regarding, I think it's Cherylotta or something.
I just found that fascinating. so I'm sharing your stories. So Kelly's introducing me to new brands and you are giving me dinner party, cocktail party conversation. I'm giving you the hot gossip. So Shera has started a gelato brand. It's called Sheralato. I'm obsessed with it. The other one that's really fun is Alicia Keys has a tea brand and it's called Alicia Teas. I'm like, this is perfection. I'm obsessed with it. Okay. So I have to ask, were both of those approved?
I don't know, actually. I think they're like in the process. Okay. Somewhere. think they're somewhere in the process. And I always send Nicole different celebrities that I find like I literally just sent her one. like, what do you think about this celebrity trademark? you think they're going texted me one today. Yeah. I find it so fascinating. I love her reels of celebrity trademarks and I'm also using that as dinner party conversation for you. Maybe that would be a good series too. But I use it too. like,
Nicole was talking about so and so celebs starting this brand. What do you think? When Chili Crunch, know, the whole debate about Chili Crunch happened, I've never been more popular. I mean, it was in my DMs and my emails and my texts, like hundreds of people wanting to hot gossip about it. So that's what we do on Instagram. We're messy. I feel like you're like the TMZ of trademarks. I am honored. I love it.
Well, thank you both so much for joining me here today talking all about trademarks and this connection with trademark and brand strategy. I just think it's genius. It's so, so helpful. I'm excited to refer folks to you. I'm excited that you're here on the show for all of our listeners to learn from you and potentially work with you in the future. So just thank you for being here. Thank you, Thanks for having us. And thanks for opening up the conversation to…
talk more about trademarks and to tell more people about it. Like, hey, please do this because it hurts our hearts when you lose your brand and have to rebrand and all that. So I just feel like the more conversations that people have about it, the better. So thanks for sharing this with your audience. Yes, thank you so much. My pleasure.
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