Trademark Attorney Ticora Davis Shares What Business Owners Should Do To Protect Their Intellectual Property

With every passing day, there seems to be a different story about intellectual property being stolen, co-opted, and capitalized upon. In every industry, there is evidence of this phenomenon, but one could argue that it’s more pervasive and prevalent when it comes to the Black community. More discussions need to be had about how the contributions of Black Americans throughout history have often been denied, ignored, and erased. To elucidate how this has manifested in present-day, Ticora Davis, Esq. sat down to discuss her work as a business and trademark attorney, and the ways that everyone can protect their business by securing their intellectual property.

Janice Gassam Asare: Ticora, could you share a little bit about yourself for the Forbes readers who are not familiar with you?

Ticora Davis: Sure. I'm attorney Ticora Davis, I'm the founder and managing attorney at The Creator's Law Firm. I launched The Creator's Law Firm in 2017, sometime after being fired from a previous law firm. I was let go was because I became a new mom and the supervising attorney felt that my commitment to being a good lawyer would interfere with my commitment to being a great lawyer. That was cited for his reason for letting me go. But that really birthed in me this commitment and this drive to continue to serve entrepreneurs and small business owners within my purpose, especially Black women and mothers who are really trying to establish brands so that they can have the flexibility and the freedom that they desire to live the life that they want. I've always focused my practice on trademark law.

Less than 2% of attorneys that practice intellectual property law are Black. I have a commitment to serve this large group that is growing very fast and they may not necessarily have access to justice or access to other attorneys that look like them and can represent them from a culturally relevant standpoint. So that's my story and my unique approach to law. And this is one of the reasons why I love speaking about how the law intersects with my particular culture and the culture of being a woman, the culture of being a Black woman and how that interfaces with respect to entrepreneurship, as well as business decisions that we have to make and really using my platform as one that is fun and cheeky and educational, and making sure that I'm dispelling legal myths while also educating and empowering my followers and community.

Asare: I definitely think that that is something that is needed. One of the things that you have been so effective at is educating your audience. Recently Walmart made headlines because of the Juneteenth trademark dispute. I don't know if I should call it a dispute, but could you share more information about what happened with that case? I know you shared it on your social media, but for the readers, could you share a bit more about that particular case?

Davis: Sure. So, what occurred was, Walmart released a Juneteenth flavored ice cream, and this was supposed to celebrate Juneteenth, right? And really Juneteenth should be commemorated, not celebrated, but that's neither here nor there. And what I noticed, I think before a lot of people noticed, was there was a TM symbol, which is the trademark symbol next to Juneteenth. And so of course this being my sphere of influence, that intrigued me, because I thought, okay, it's really interesting and eyebrow raising that they're releasing ice cream about this day, but there's a TM symbol next to it. Whenever someone places the trademark symbol next to a word or a logo or phrase, what they're communicating to the public is they are intending to take and claim ownership over this particular word or this particular source identifier, which is a trademark to the exclusion of others, which means that they want to be the only brand to be able to produce Juneteenth-related ice cream or similar products.

When I saw that TM symbol, I said I have to do some research and see, do they even have a pending trademark application? And although I did not see that Walmart had a pending trademark application, what I discovered was there was another corporation by the name of Balchem Corporation and they had filed a trademark application in 2021. The Balchem Corporation trademark application covered food products, as it relates to flavors to place in ice cream. If you look a little deeper into Balchem Corporation, they will create products for people to place their own label on. If you look at the ice cream, it had the Great Value brand for Walmart’s name on it. And so, although Walmart never filed a trademark application, they did place their Great Value brand symbol on that ice cream. Although I cannot prove that there is some sort of connection between these two companies, they have done business before together in the past. We have Walmart, who's selling ice cream. Obviously, it's going to be primarily targeted and marketed to the African American community because we are the ones who celebrate Juneteenth. And then we have Balchem Corporation, which is a largely white-owned company. To me, it felt a little sinister and unnerving that they would take just the full name of a holiday that is meant to commemorate the last enslaved Africans being freed, and then want to commercialize it and commoditize it to the exclusion of the same community and others that it's meant to serve.

Asare: When I think about intellectual property and trademarking, I remember the young Black girl who created the viral phrase ‘on fleek’, as well as the woman who created the phrase ‘Black girl magic’, and both of them had their intellectual property popularized and used without their consent. How often do you see people's intellectual property being co-opted and capitalized on?

Davis: All the time. The reason why is because there is not a fundamental understanding of what actually gives you legal ownership rights. Merely saying words or it going viral in a meme does not mean that you legally own the words or the phrase. If you want legal ownership over a word, phrase, whatever that is, you have to either file a trademark application or you immediately attach it to some sort of product that you can start to sell.

What happens in our community, especially for Black creatives, is we will have casual conversations with other people, we will ask people in Facebook groups, what do you guys think about this business name? All the while, you don't even realize, you don't own it just because you have the idea. If you have not filed the trademark application or actually used this word in connection with a product or service that you have offered and you have rendered, it's really up for grabs for anyone.

Asare: I'm really fascinated by all of this and I remember reading earlier this year that rapper Meg Thee Stallion secured the trademark for the phrase she popularized ‘Hot Girl Summer’ after like a two- or two-and-a-half-year trademark battle. Many people are now familiar, because of you, with the current trademark battle between Kim Kardashian, Lori Harvey and the owner of SKKN+, a boutique skincare studio in Brooklyn, New York. And then I've been hearing currently that there is a copyright infringement lawsuit that was filed by Nicole Gilbert-Daniels against Lionsgate and Starz. So, what do you think the average person can do to protect themselves and their intellectual property?

Davis: I think we need to understand as creatives that legal is not something that should be optional…just as you form the LLC and you get the proper paperwork in place whenever it comes to owning your business name. And let's be clear—a trademark is the only avenue and pathway in this country where you can have exclusive ownership rights to your business name or logo or tagline. We need to say, okay, I have my LLC, I have my operating agreement, I have my EIN, next up is my trademark. And many people just put it off and they think they have all the time in the world. The stronger your brand name is, the better for you, the more money you can potentially make. You need to do it as soon as possible.

Make sure you make the investment into hiring an attorney because this is a tax-deductible service. But even if you don't have the money to hire the attorney, go to either one of two sources to get this done for free. One, you can go and reach out to your State Bar Association. All licensed attorneys should be members of a State Bar and many of us are required and recommended to do at least 50 hours of pro bono service a year. You can also reach out to law school clinics. Law schools have various entrepreneurship clinics where law students are getting real-time work skills by representing people and filing trademark applications. If you get your trademark through a law school clinic, they will expedite your application because they know law students, they're finishing up the semester within 16 weeks. Some people can get their trademark reviewed, if it goes through a law school clinic, in less than 90 days. If you go through an attorney, it's going to take a year and a half. These are practical ways that Black creatives can say, okay, I'm going to change my mind set about trademarks…I have these avenues that I could pursue and adopt to make sure that I get legal protection and some could be faster than others.

This interview has been lightly edited for clarity and brevity.