How To Copyright A Logo And Trademark To Avoid Infringement
These days, art theft is an even bigger problem than it ever has been before — and it doesn’t all involve paintings, heists, and well-protected galleries. The bigger issue, one which faces almost everyone who puts a piece of art or graphic design out onto the internet, revolves around the unauthorized use of proprietary material.
This is especially important when it comes to logo design.
Why You Might Want To Copyright And Trademark Your Logo
We all know the importance of a logo. A brand’s logo not only identifies the company and marks its products, but it also is wrapped up with the entire reputation of the brand. When you see the logo for MacDonald’s or Starbucks or WalMart — all very well known logos, and all trademarked — you think of more than just the name of the brand. You think of what they offer, past experiences that you’ve had, and whether you’re likely to visit their locations again anytime soon. A brand’s logo is potentially the single most important visual, and if that logo is stolen, corrupted, or misused, it can seriously damage the brand’s good name.
The first ever registered trademark for a logo was issued in 1876, for Bass Ale. Other venerable companies who trademarked their logos early on include Levi Strauss, Stella Artois, and Heinz. From early on, the value of copyright and trademark for a logo was easily seen.
The results of changing copyright and trademark laws have been easily seen, too. Thousands of lawsuits regarding copyright infringement have been brought over the years, with a variety of results. Research indicates that there continues to be considerable damage wrought on brands and companies by infringement. Some of the potential issues of infringement include:
- Loss of income. If someone else represents themselves as your company, they may mislead your customers into giving them money instead, under false pretenses.
- Loss of customer loyalty. By the same token, a scam company may feel free to make and break promises in your name, leading to upset customers and potential loss of repeat business.
- Loss of reputation. By misusing your logo in the public eye, scammers can tarnish and even completely wreck the good name of a brand.
Ultimately, no one wants their brand name to be used by someone who isn’t authorized to do so, anymore than you want someone borrowing your phone to send text messages in your own personal name. It can be damaging on a variety of levels. And without protection against infringement, there may not be a way to rectify the situation.
However, the law is set up in such a way as to protect businesses from the beginning. There are a few factors to be aware of before you decide whether you really need to copyright your logo or trademark.
Before You Copyright, Here’s What You Should Know
Did you know that there are some protections built in on behalf of a new brand, even before they file for a copyright or trademark?
In the United States, it’s called a “common-law copyright,” and it kicks in the moment that you print or publish your creative work. This is a federal law that ensures that “copyright rights vest in the author of the copyrighted work,” protecting, “‘original works of authorship’ like literary, musical, and other types of artistic work as long as they are fixed in a tangible medium (such as paper, canvas, or a recording),” according to John DiGiacomo at Revision Legal). Some states have more extensive copyright laws built in, such as California’s provision that protects creative works even when not yet “fixed in a tangible medium.”
In the case of infringement that appears to be covered only by common-law copyright, it’s possible to bring the issue to court. But it can be more difficult to prove ownership of the logo design, and harder to win the case.
Common-law copyright is limited to a degree, however. It applies within the location in which the brand was started, but does not extend to other areas. If you launch a business based in Washington DC, your logo is protected in that area and you can take infringement cases to court. However, if someone in New York City uses a logo similar or even identical to yours, you cannot expect that common-law copyright will protect your right to exclusive use. This is a big part of why companies decide to copyright or trademark their logo: it has a potential impact on the reach of their target audience and ability to market themselves uniquely outside of their home territory.
Another important factor to weigh in the question of whether or not to copyright and trademark your logo is the individual elements used in the logo design. Most elements that are commonly available, such as graphics and fonts in templates found on LogoDesign.net and other public design software, are in the public domain. (For more information on how public domain and fair use works, Stanford Libraries has a useful article here.)That means that they do not fall under the protection of creative works copyright, and cannot be claimed as copyrighted proprietary material by an individual.
For example, the FAQ for LogoDesign.net states clearly, “All logo design templates featured in our database are designed and owned by LogoDesign.net. No copyrights can be given because these designs are downloaded and used by other users like you.”
This is another key point to keep in mind when deciding whether to pursue copyright and trademark protection. Unless your logo design is completely bespoke and individually designed for you, without using pre-existing elements, you cannot copyright it.
However, common-law copyright usually extends to business names and some other common business identifiers and branding assets, so even a company with a logo that uses public domain assets has some level of protection.
Copyright Vs. Trademark
Though these two terms are sometimes used interchangeably, they’re very distinct both in what they apply to and the protections they provide.
The Copyright Office of the US Government defines a copyright as “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.”
The United States Patent and Trademark Office says that a trademark “can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.
In short, then, copyrights are more closely linked to creative works, and trademarks are more closely linked to identifying marks. Hence the potential for confusion when it comes to logos, as they are usually counted as both creative and identifying. Dictionary.com defines a logo as “a graphic representation or symbol of a company name, trademark, abbreviation, etc., often uniquely designed for ready recognition.” The lines are definitely somewhat blurred. So let’s identify what makes a logo eligible for either a copyright or a trademark.
What Qualifies A Logo For Copyright: A Checklist
Now that we’ve established that not all logo designs are subject to copyright, how do we know what does qualify for that extra protection?
- Your logo must be “creative enough” to qualify. That means avoiding public domain assets and elements.
- Your logo must demonstrably belong to you and your brand. If you’ve hired a designer to create the logo for you, a contract should be signed that includes the designer’s acknowledgement that he or she relinquishes all claim to the design and that his or her creative work belongs to the client, ie., your brand.
- Your logo cannot infringe on any other logo designs. You can’t step on someone else’s toes without running the risk that they will take you to court, and potentially win if they already have common-law copyright in their favor.
If your logo meets the qualifications for a copyright, it may very well also meet the qualifications for a trademark.
What Qualifies A Logo For Trademark: A Checklist
On the other hand, another complimentary option for protecting your logo against infringement is the trademark. Most big companies have trademarked their logos, including McDonald’s, Starbucks, and WalMart as mentioned above.
- Your trademark must be a word, phrase, symbol, or image that is unique to your company to a degree that it stands out as an identifier. In other words, avoid elements or combinations of elements that could easily be mistaken for other brands.
- Your company wants or requires national protection for your logo, beyond the common-law ownership rights that are afforded in your original area.
One important thing to note with trademark law is that it’s designed to protect brands from becoming confused with others. It doesn’t apply in cases where confusion is unable to be proved. For example, Dove Soap and Dove Chocolate are both trademarked names, but because they operate in completely different markets, there’s no real danger of confusion. Your trademark will not prevent another company from trademarking some of the same elements, provided there is no room for confusion. Similar names, slogans, and even logo elements are not automatically viewed as infringement.
How To Copyright A Logo
To copyright a logo, first ensure that it meets all the criteria for obtaining a copyright.
After that, your best resource is the US Copyright Office which will walk you through the process. You will need to file an application and include non-returnable copies of the work which you wish to have copyrighted. You may also need to prove ownership, originality, and uniqueness of the work, especially in the case of a business logo.
Filing for a copyright can cost anywhere from $45 to $125, with potentially more cost being required if further work is necessary in order to process your claim. And the process itself can potentially take months.
Copyrights last 70 years after the death of the creator before entering the public domain, when belonging to an individual. Understandably, this can get confusing as copyrights don’t usually refer to logo design. It’s important to make sure that the copyright for your company’s logo design is tied to the company, rather than the founder.
How To Trademark A Logo
To trademark a logo, make sure that it meets the criteria for trademarking listed above. There are fewer requirements, and certainly less need to prove originality and creativity, because trademarks are designed to protect logos. However, it’s still important to ensure that you’re not infringing on anyone else’s trademark, and that you’re providing the trademark office with the final and definitive version of your logo. If you change your mind and adapt the design, you’ll have to go through the whole process again.
Before you file your trademark, do a trademark search to ensure that your logo truly is unique and not too similar to any others.
A logo can be trademarked by registering it with the United States Patent and Trademark Office. Follow the prompts to fill in the necessary paperwork, provide copies as requested, and file. The cost of trademarking your logo will depend on the class in which you are registering, what goods and services you provide, and whether you hire an attorney to assist you with the process. The standard fee for filing for a trademark is $350. There are also other fees assessed yearly and for re-filing every ten years as necessary.
If not in use, trademarks must be renewed every ten years.
What To Do If You Find Infringement
According to the USPTO, infringement is defined as “unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.” The USPTO also provides guidance on what may be done if you suspect infringement.
- Send a cease and desist letter or takedown notice.
- You may file a civil action in state or federal court.
- You may settle out of court.
If the infringement is found to be unintentional and if the person in question responds to the cease and desist immediately, it may not be worth the time and money of pursuing it. If you decide to go ahead with legal action, it’s suggested to retain legal counsel in order to make sure you have the best protection on all accounts.
Protecting Your Logo
Should you copyright your logo? Should you trademark it? Or should you simply rely on common-law ownership?
As we’ve seen, there are fewer creative requirements when it comes to trademarked logos, simply because trademarks are designed for purposes of protecting identification and ownership. If your brand needs protection in addition to common-law copyright or trademark, a trademark is more likely to be the recommended remedy. However, before you embark on what could be a potentially expensive endeavor, it’s always wise to consult with a specialist in trademark and copyright law who can make sure you only pay for what you actually need.
In most cases, especially for small businesses, common-law ownership laws that are built into creative properties are enough to protect the brand. And in many cases, logos are created with public domain elements and do not meet the qualifications of copyright.
Ultimately, most logo designers and business owners decide to rely on common-law ownership to protect their logos.