Mike Draper, owner of SMASH in the East Village, is in the process of changing the name of his store after an LA company threatened to sue. Photo by Duane Tinkey
Mike Draper, owner of SMASH in the East Village, is in the process of changing the name of his store after an LA company threatened to sue. Photo by Duane Tinkey

Google the word "Smash" and the first thing that comes up in the search engine is a T-shirt company in Des Moines' East Village. It ranks ahead of Nintendo's Super Smash Bros. and Pepsi Smash.

But that's about to change. Early this year, SMASH owner Mike Draper received a letter from a law firm representing a Los Angeles apparel company also named "Smash." Rather than go to court, Draper has spent the past year going through the process of finding a new name that isn't trademarked and submitting a couple of options to the U.S. Patent and Trademark Office. By SMASH's semiannual party in November, Draper hopes to end a two-year process by announcing a new name.

Draper won't reveal the possibilities just yet, but he's already letting people know about the change with an article in his June catalog and by incorporating the staff's top pick into its new T-shirt line.

He hopes these efforts will make the transition easier after working to build the SMASH brand since he opened the store four years ago. He estimates by the time he actually changes the name, he will have spent around $10,000 in applying for trademarks, attorneys' fees, research time and advertising.

"For a company like this, the brand name is pretty much everything," he said. "We don't have an invention that's ours that we sell to people. All we're selling is the name of the company."

"Smash" by The Offspring was the title of the first CD Draper ever bought, and he used it for his store name after a basic Internet search. He finally applied for a trademark in the winter of 2007, then discovered a year later that a tennis company that sells apparel held the trademark and a few other companies, including the Los Angeles retailer, were ahead in the application line. By the time Draper received an "unneighborly letter" from the law firm representing the Los Angeles company, he already was considering changing his store name.

Draper's first reaction: "I was more than upset. It is like, oh, we're number one on Google, that makes the word ours, but when your opinion runs up against the U.S. Patent and Trademark Office, there's not a whole lot you can do about it."

Draper switched law firms after he felt his first choice did not adequately prepare him for a possible name change, and then spent the next couple of months researching possible names. In March, Draper applied for trademarks on a couple of names, hoping that by October he will learn whether he received at least one.

During this, Draper's store has doubled in size and sales are up 110 percent this year. Draper has plans to open more locations, including a store in Iowa City by 2010, and better market the Web site, but doesn't want to move forward until he has a trademarked name.

"Every day that you have the same name, you're building on that, you're putting more money into the name," Draper said.

Selecting a name has been another challenge. "We want a name that kind of fits what we're doing now but is also easy to spell, short, not trademarked, not already being used by another company, so that pretty much limits it to like three words in the English language," Draper said.

Finding a name that worked required searching the Patent and Trademark Office's database to see if companies in SMASH's category had the same name he wanted and whether other companies in another category might one day try to enter the apparel category. He had to spell the word he was searching in every possible way, because he has to prove that the name he chooses would not create confusion with another trademarked name, leaving "Smashed" out as an option.

Even if he gets a trademark for a name, if another company started using that name before he did and wants to trademark it later, it could sue Draper within five years of him getting his name trademarked. And if he is sued and loses, he's liable for damages and legal fees dating back to when he first knew about the other company.

"I never really played the whole situation out in my mind," Draper admits. "I just always hoped for the best that there wouldn't be other companies" with the SMASH name.

Local attorney Brett Trout, whom Draper has turned to for legal advice, said SMASH's problem is common among small businesses. It tends to come down to whether another company will call you out if you have the same or similar name, Trout said. And it's cheaper to change names than fight the legal battle.

Though SMASH has a strong following that could help make the name change successful, Trout said, other companies "have no choice but to fight because they will lose all their business."

Despite Draper's "nostalgic attachment" to the name SMASH, "it's not the best name," he said. It doesn't work well as a logo and is already widely used.

If he doesn't get another trademarked name by this fall, it could delay his growth plans. However, the downtime has helped him build a bigger staff, nail down production and prepare to ramp up quickly when the new name is ready.

"This is probably the biggest, most annoying thing to have dealt with," he said.