Practice Areas

Trademarks

Walmart

Branding is everywhere.

Your brand is a valuable asset that drives customer loyalty and deserves strong protection. Our firm manages every aspect of intellectual property protection to safeguard your brand. We help secure the proper protections, and if your brand is ever infringed, we will take swift action to hold the infringer accountable.

Why register a trademark?

Trademarks serve the important purpose of identifying the origin of goods and services. Trademarks let your customers easily and reliably identify you. The goodwill and reputation you painstakingly build up under your business’ identity is a valuable asset—arguably your most valuable asset. Henry Law understands how to protect your corporate identity proactively using preventative steps and reactively through trademark enforcement services.

Utilizing U.S. Customs to enforce your rights

IPR
As an owner of a federally registered trademark or copyright, you can utilize U.S. Customs to block the importation of infringing goods. This program is known as the Intellectual Property Rights (“IPR”) enforcement program of U.S. Customs and Border Protection.
Register your IP
To take advantage of the IPR program, you must first register your intellectual property (your copyright or trademark) with the United States Patent and Trademark Office, or your copyright with the U.S. Copyright Office. U.S. Customs and Border Protection will not take action without proof of a valid federal registration.
Record your registration
After securing a federal trademark registration, the next step is to record your registration with U.S. Customs and Border Protection using the e-Recordation system. The fee for each copyright is currently $190, and the fee for a trademark is $190 per International Class of Goods/Services.
Customs enforcement
After your federal registrations have been recorded, U.S. Customs and Border Protection professionals will search for products that appear to infringe any recorded copyright or trademark it has on file. If they finds a counterfeit or infringing product, Customs will detain the shipment. Customs will then send the registered IP owner a detailed letter informing the owner of the attempted importation of the infringing goods. This allows the IP owner to pursue legal action against all parties involved in the attempted importation of infringing goods.

A federal registration allows you to leverage the enforcement power of U.S. Customs and Border Protection to protect your rights.

The purpose of trademark registration

When you select a word, design, or slogan that identifies your goods or services, you yourself can check to see if it has already been registered using TESS, the U.S. Patent Office’s Trademark Electronic Search System. If you decide you want to move forward, we will perform additional searches to ensure there are no previously registered or conflicting registrations. Ideally, we consult with our clients regarding their preferred marks at the outset, prior to adoption of branding. Early consultation helps to prevent complications and expense involved in changing your business name or marks after you have invested time and capital in building them. Helping you approach your branding from the perspective of ensuring legal protection and trademark law compliance minimizes consumer confusion with your brand while at the same time avoiding legal complications for you. It is an important but technical process, and one that Henry Law can help you successfully navigate.

Selecting your brand

Select a strong brand. Think of your branding as a shorthand for customers. Your branding tells them they have found the quality goods and services they desire and which you have a reputation for providing. In an age where a search often results in overwhelming results, your trademark will differentiate you from your competitors. For you to realize the value of this signal of quality, your branding must be strong and distinctive.

What makes a good brand name?

Distinctiveness
Distinctiveness goes to the heart of the function of a trademark: its ability to identify a source (you). The legal framework that has developed around this requirement can be satisfied with one of two doctrines: inherent distinctiveness or acquired distinctiveness.

A trademark is inherently distinct if it automatically tells the consumer to whom it belongs. Inherently distinctive marks are the strongest kind of mark, and require no further information to tell the consumer who is represented by them. Xerox is an example of an inherently distinctive mark.

In contrast, marks that acquire distinctiveness have what as known as a secondary meaning: while the mark doesn’t tell you inherently who it represents, its constant use has come to tell consumers over time that the mark represents a specific brand. Tiffany Blue is an example of a mark that has acquired distinctiveness.

The difference between the inherent and acquired can be confusing. In order to differentiate the requirements, the courts have developed a continuum of distinctiveness.

Arbitrary / Fanciful
Arbitrary marks are those that have an independent meaning but not one that relates to the particular product or service they identify. Examples include Apple (for computers, but not for produce), and Subway (for sandwiches, but not for transportation).

Fanciful marks are marks that are made up, having no meaning other than their trademark meaning. Examples include Google, Kodak, Exxon, and Xerox.

Arbitrary or fanciful marks are inherently distinctive. They are the strongest type of marks.

Suggestive
Suggestive marks are those that suggest the nature, quality, or characteristic of the products or services, but do not describe this characteristic. Suggestive marks require imagination on the part of the consumer to identify the characteristic. Examples include Blu-Ray, Greyhound, and Coppertone.

Suggestive marks are also inherently distinctive.

Descriptive
Descriptive marks are just that – descriptive. They merely describe the goods or services to which they pertain. Examples include Best Buy and International Business Machines (IBM).

To achieve substantial federal protection, descriptive marks must acquire secondary meaning. In order to acquire this level of consumer association, secondary meaning typically requires the mark to be in use for a minimum of five years.

Generic

A generic trademark is a trademark has become the generic name for, or synonymous with, a general class of products or services. It either never had or has lost its association with the source.

Marks can be generic, e.g., Bar-B-Que, or become generic over time. Some examples of well-known trademarks that became generic over time include linoleum, escalator, trampoline, thermos, and yo-yo.

Generic terms are not protectable.

Registering your brand

The purpose of registration is notice—it gives everyone in the market a fair warning about your rights. Accordingly, an effective trademark strategy includes selecting a conflict-free trademark and registering that mark with the appropriate state or federal agency. The registration process generally takes about one year, but a trademark user can typically continue using the brand so long as the trademark search does not return a conflict. Trademark registration is a critical step in protecting your brand.

Registration is the beginning of protecting your trademark rights

Registration stakes your claim
The purpose of registration is notice – it gives fair warning to everyone in the market of your rights. Accordingly, effective trademark strategy includes not only selecting a conflict-free trademark, but also registering that mark with the appropriate state or federal agency.
Avoiding conflict avoids unnecessary expense
Registration protects you from the misuse of your brand – but it also protects others from the misuse of their brands.

We recommend a consultation at the outset of your business development – before you have invested in a prospective brand – to be sure the identity you want to build remains free to use. This conflict clearance helps you avoid costly mistakes in branding. Mistakes that can add up in legal fees to defend infringement cases brought against you. Early consultation helps avoid complications and the expenses involved in changing your business name or marks after you have invested time and capital in building them.

Helping you approach your branding from the perspective of ensuring legal protection and trademark law compliance minimizes consumer confusion with your brand while at the same time avoiding legal complications for you. It is an important but technical process, and one that Henry Law can help you successfully navigate.

How long does it take?
The registration process generally takes about one year, but during that timeframe a trademark user can typically continue using the brand so long as the trademark search does not return a conflict. A trademark registration is a critical step in protecting your brand.

Federal Trademarks vs. State Trademarks

There are two kinds of trademark registrations – federal and state. Most people know of the trademark registration issued by the United States Patent and Trademark Office, known as a federal registration. This is the strongest form of trademark protection. A federal registration protects your trademark in all 50 states and is superior to any state registration.

There are also state-level trademarks for businesses who only conduct business on a local level. These can be important for service providers who sell only in a limited geographic area with no plans for expansion.

Enforce your rights

If a competitor copies your branding, or if your customers are getting confused or misled by a competitor’s duplicative or similar mark, then you should have an attorney review the facts to determine if your trademark is being infringed. Trademark infringement matters are significant and should be promptly addressed. Failure to police and enforce your trademark rights can result in their loss.
Are you being infringed?
Infringement can take on many faces. Perhaps your branding is being directly copied by a competitor. Other times, infringement takes the shape of branding that is not a direct copy, but is so similar to your protected branding that it is causing your customers to be confused or misled.
Why should you care?
Trademark law requires you to “police” your trademark. While you don’t have to go to the police academy, you are under an obligation to make sure no one is diluting the connection between the goods or services that carry your mark – or an infringing mark that is confusingly similar to your mark – and you as the origin of those goods or services. Failure to enforce your mark can lead to losing it or it becoming generic and unenforceable.
Counterfeit products

The law prohibits direct copying—counterfeiting—of your protected products. If someone is directly copying your product, Henry Law can assist you in understanding your rights not only on a local level, but also by compelling Customs to interdict the importation of counterfeited products when appropriate.

These remedies typically require a federal trademark registration, which is another reason it is important to secure a federal trademark registration early.

Amazon Brand Registry

The popularity of e-commerce websites (Amazon, Etsy, E-Bay, etc.) has created problems for trademark owners including trademark infringement and counterfeiting.

The Amazon Brand Registry is designed to combat some of the infringement problems, and Amazon encourages all Amazon sellers to enroll. This free program provides global word and image searches to find potential infringers and allows trademark owners the ability to quickly review and remove potential infringers from the Amazon Marketplace.

Amazon now requires sellers to have a federal trademark registration for a standard word mark or a combination of a design and wordmark (design-only marks are not currently eligible for the Amazon Brand Registry). The registration must also be on the Principal Register, which is only available for inherently distinctive marks and those marks which have become distinctive through the acquisition of a secondary meaning.

Contact Us Today

With a proven track record of achieving excellent results in complex cases, Henry Law Firm is ready to go to work for you.

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HENRY LAW FIRM

Otto M. Bartsch

With degrees in philosophy and chemistry, Otto excels in complex litigation and intellectual property cases.

In a recent federal case, Otto used forensic digital analysis of crucial documents to reveal their fraudulent nature, immediately resolving all claims in our client’s favor. Otto led a multi-jurisdictional collection effort of a $3.4 million judgment for Oklahoma Genetics, Inc. The case was on claims of intentional violation of the Plant Variety Protection Act, and a federal judge tripled our client’s damages. Years after the judgment was entered, Henry Law Firm forcibly seized substantial assets, and OGI could re-invest proceeds into future seed varieties and genetics.

Before affiliating with Henry Law Firm and practicing law as Otto M. Bartsch, PLLC, Otto earned his Master of Laws in Intellectual Property & Technology Law. At graduation, Otto ranked highest in his LL.M. class. He also won the Client Counseling Competition and competed in the national semi-finals of the AILPA Giles Rich Moot Court Competition in intellectual property law.

Otto works with clients to establish and protect their trademarks, copyrights, and brand identities. He is also experienced in breaking or enforcing non-competition agreements.

COURT ADMISSIONS

Otto is licensed to practice in Arkansas, Missouri, and Texas and has been admitted to practice in several federal courts, including the Eastern and Western Districts of Arkansas, the Eastern and Western Districts of Missouri, and the United States Court of Appeals for the Eighth Circuit.

HENRY LAW FIRM

Mark Henry

Mark is AV-Preeminent™ rated, a distinction earned through years of consistently outstanding legal work and a reputation for integrity. With decades of experience as a registered patent attorney and an LL.M. in agricultural law, he has developed a deep focus on protecting agricultural seed technology. Mark works closely with universities and multinational companies to navigate complex intellectual property matters and ensure long-term protection of innovation. He has handled more than 100 cases under the Plant Variety Protection Act, bringing a wealth of practical insight to the defense of plant breeders' rights. In addition to his legal practice, Mark has contributed to the field as an educator, teaching agricultural biotechnology law in the LL.M. program at the University of Arkansas School of Law.

Mark prosecutes and defends highly complex civil litigation and high-stakes, bet-the-company disputes involving trade secrets, patents, copyrights, and DMCA claims in federal courts across the country. His cases frequently address cutting-edge issues involving computer code, seed genetics, and architectural works. Licensed in six states and admitted to practice before the United States Patent and Trademark Office, he has served as lead counsel for clients in more than twenty-five states, offering broad strategic perspective and experience.

Mark brought one of the first cases under the Frank Broyles Publicity Rights Act, Ark. Code Ann. § 4-75-1101, helping to shape the early application of Arkansas’s right of publicity law. He successfully represented professional rodeo athlete Cody James in a case involving the unauthorized commercial use of James’s name and likeness. A decorated competitor, Cody has qualified for the Arkansas Rodeo Association Championships 22 times, is a seven-time ARA Champion, and has been named both Overall Rookie of the Year and Tie-down Roping Rookie of the Year by the Professional Rodeo Cowboy Association. Mark’s advocacy in Cody James v. Boot Barn, Inc., No. 4:22-cv-646-KGB (E.D. Ark. 2023), helped affirm the importance of protecting the identity and brand of professional athletes under Arkansas law.

He also serves as both trial and appellate counsel, offering a comprehensive approach to complex litigation. In Associated Electric Cooperative, Inc. v. Southwest Power Pool, Inc., Case No. 23-1293, (8th Cir. 2024), Mark secured a significant trial and appellate victory, successfully defending a $37.64 million claim in an energy dispute involving tariffed energy rates. The Eighth Circuit agreed that SPP had fully compensated AECI for the transactions in question and held that equitable recovery theories are not available when an express contract governs the parties’ relationship.

Mark is also known for taking a principled stand against improper litigation conduct. In Lyon v. The Academy, Inc., 2024 Ark. App. 386, he obtained Rule 11 sanctions against opposing Arkansas counsel Matthew Campbell and Elizabeth Lyon. The Arkansas Court of Appeals affirmed the sanctions, finding that their claims were frivolous, had no chance of success, and were brought solely to harass and drive up litigation costs—highlighting Mark’s commitment to professionalism and the integrity of the legal process.

When disputes arise with Walmart, Mark provides trusted counsel to both large and small vendors. Given that Walmart is headquartered in Northwest Arkansas and most of its contracts require disputes to be litigated in Benton County, Mark’s location in Fayetteville—home to the federal court for Northwest Arkansas—positions him ideally to handle these matters efficiently and effectively.

Mark is admitted to practice before the U.S. Supreme Court, the U.S. Courts of Appeals for the Eighth and Federal Circuits, and several federal district courts, including the Eastern and Western Districts of Arkansas, the District of Nebraska, and the Eastern and Western Districts of Oklahoma. He also represents clients before the Trademark Trial and Appeal Board in trademark matters.

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