Representing Yourself: A Fool for a Client?

It’s no secret: Lawyers are expensive.

That’s why two Boalt Hall Law School students, Ralph Warner and Ed Sherman, started Nolo Press in their attic in Berkeley in 1971. Nolo self-published Sherman’s first book titled How to Do Your Own Divorce in California. Established publishers wouldn’t touch the book out of fear that its authors were practicing law without a license, a felony in many states. Nolo Press made millionaires of its founders under the slogan “Don’t feed the sharks,” and the advent of internet commerce naturally resulted in Nolo Press evolving into Nolo.com.

The premise of Nolo.com, LegalZoom, RocketLawyer, and other online do-it-yourself (DIY) legal sites is that there are transactional processes you can, obviously, do yourself and don’t require the expense of an attorney. Contemporary examples of DIY legal transactions are forming your own LLC or corporation, creating your own will or trust, and yes, even divorces.

You will be hard-pressed to find many advocates of representing yourself in an adversarial proceeding, whether civil or criminal. I would include in this admonition trying to represent yourself in a divorce as promoted by Nolo’s first book. Wills and trusts are invalid if you don’t follow the formalities to the letter. Forming your own LLC or corporation, however, is actually quite simple.

That being said, an LLC operating agreement is a complicated document. Corporate bylaws can be extensive and convoluted, and the tax differences between a C-corp and an S-corp are vast, especially in a state like California.

But there’s one DIY legal transaction that has been appearing on my radar multiple times in just the last few months: Doing your own trademark application.

Unlike filing your own copyright registration—which is rather self-explanatory—a trademark filing with the United State Patent and Trademark Office is more complex. There are magic words the USPTO wants to see. For instance: you have to prove “use in commerce;” your mark can’t risk being confused with someone else’s; you have to file under the appropriate class or classes of goods (and extra classes incur extra filing fees); a detailed description of your logo is necessary; and myriad other details need to be addressed.

Further complicating matters, it is more difficult to trademark a unique phrase (e.g. company name, product name, or slogan) than it is to trademark a unique logo with the phrase in it. The “use in commerce” requirement is easy to meet, but many filers are rejected because they don’t or can’t prove that they’re actually using their trademark in commerce (advertising, website, product sales, etc). One reason the trademark filing fee is eight times higher than the copyright fee is because a specially-trained USPTO attorney reviews your trademark application.

Online legal sites don’t help you with these details, and they’re certainly not going to go the extra mile to push through the registration of your trademark.

A recent example comes from a Colorado dentist who came to me for help frustrated by the ineffectiveness of an online legal documentation services in getting his trademark application completed. The online service was running this dentist in circles, requiring additional work, and that any extra work was (naturally) going to cost more money. A similar situation happened to the dental advertising outfit, RAMP, resulting in its trademark application being abandoned by the USPTO. I was able to rectify both these applications in one day, and their approval is pending.

We’ve come a long way since Nolo’s 1971 DIY divorce papers, but you will save time, a headache, and ultimately money if you consult with an appropriately-experienced attorney even for what you perceive as “little” things such as trademarking your valuable intellectual property. Don’t be lured into pennywise and pound foolish.

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