Logo Design Protection Using Trademark, Design and Copyright

Uncategorized Jan 28, 2019

Using Trademark, Design and Copyright are all ways to protect logos.

The subject isn’t well understood, yet it’s worth paying attention to this to protect your business.

To understand the available legal protections for logos let’s first look at examples of the different types of a logo that you may want to protect. 

There are 3 variations:

 

1. A combined mark – that is a word and an image, looks like this:

The words incorporated within such a logo should be checked for trademark purposes before using the logo to ensure it is not already trademarked by a competitor. 

This is necessary even if you have already registered the company or domain name. 

As a separate matter also have a trademark search to check that the image element is not too similar to a competitor’s trademark.

 

2. A stylised mark – that means a word on its own like this:

The words incorporated within such a logo should be cleared for trademark purposes before using the logo to ensure it is not already trademarked by a competitor. 

This is necessary even if you have already registered the company or domain name.

 

3. A device mark – that is an image on its own like this Nike Swoosh:

All these different manifestations of a logo are capable of being protected not just with trademark registration but also with design registration. 

Copyright is a fundamentally important right that you should start with and ensure you have the rights in your logo. 

 

The 3 Intellectual Property Rights Relevant To Logos:

Logos such as the signs indicated above that a uses should always be protected in at least one of the 3 intellectual property rights. The rights need to be taken on board before commissioning anyone to help with your brand identity.

If you’re to own the necessary rights in your brand you’ll need to look into the 3 intellectual property rights, in more depth than this piece goes into.

• Copyright

• Registering design 

• Registering a trademark.

 

Copyright protects ‘works’ such as logos, graphic designs, drawings, and photographs. 

In most countries worldwide, the copyright in these visuals will vest in the creator unless they are your employees paid through the payroll or they transfer the rights to you in writing.

People hear that copyright arises automatically and does not need to be registered and are lulled into a false sense of security. They’re not aware that the ownership rules under the law don’t necessarily vest copyright in them just because they’re paying for the work to be created.

While it’s not necessary to register copyright in the UK, in some countries such as the USA it is established practice to do so, such as through the Library of Congress in the USA.

Copyright is the most powerful right to own. However, it comes with a serious drawback, and that is the need for proof of ownership and copying. To stop someone using an identical or similar logo – on their website say – you would need to prove they copied your logo. 

They may argue you copied theirs or that they came up with the same logo independently without copying yours. In that case, you have an expensive dispute because it’s necessary to look at the evidence to establish who is the true creator of the copyright work. If the matter went to court a judge would need to decide by looking at all the evidence.

So once you secure copyright ownership, if you register your logo as a copyright (you may do so in some countries) it’s one of the ways of establishing proof of the date of creation of the logo. This may sometimes be sufficient to resolve a dispute speedily.

Evidence that would be acceptable to a court of law also includes use of a statutory declaration. However, posting an envelope to yourself is not acceptable. 

That’s because it could be argued you with the envelope after it was posted. Even where you have satisfactory evidence of the date of creation of a logo, it is still necessary to prove that the other person copied your logo, and didn’t happen to come up with the same design independently.

 

Registered design

Given that logos automatically have some copyright protection, the benefit of registering a logo as a design is that the registration certificate acts as proof of your rights. It is immaterial that the other party may have come up with a similar design, unless they can prove that they’d done so before you registered your design. In that case, they would be applying to invalidate your design registration.

So, registering a design gives you more powerful rights in the logo than copyright alone as it addresses the problem of proof of the date of creation. Registration of logos as designs can, therefore, act as a good deterrent to copying.

Design registration is available in the UK or in the EU or via the Hague. 

Once registered as a design you may renew the registration every 5 years for up to 25 years.

As it’s necessary to register the logo in a short window of time (a year) it’s worth dealing with design registration early on. Note that in the USA copyright registration gives you the equivalent of registered design protection as their design protection is more relevant to patents.

 

Trademarking A Logo

Trademarks are tools to protect the reputation and goodwill of a business. They enable your customers to recognise your products and services, and to distinguish you from your competitors.

The image element should be cleared (searched) for trademark purposes to ensure it is not too similar to a competitor’s trademark, while the word element also needs to be searched before you use the name.

As trademark registration is often what people ask about, I would just say that what you register as a trademark depends on how you use your mark in practice. If you use it only as a combined mark then a single combined registration is sufficient. If you use the elements separately then you should register each one separately as well as in combination. 

For those on a strict budget, start either with the word on its own or a combined mark depending on your business, and then later apply for the separate elements.

Registering a trademark is the way to secure exclusive ownership of your unique brand signs, and to protect your business against competitors who use similar names or signs to take business away from you by promoting similar products and services.

While in the UK and USA rights in trademarks can be built up through use of the mark, in most countries the first to register will have the rights to a mark. 

Indeed even in the UK, if someone else has registered the trademark you would need to rebrand. 

And bear in mind that passing off disputes to establish your USE rights in a name are extremely expensive, time consuming and messy. 

In practice, it is very difficult to argue that you have earlier rights in a name. 

Be sure to register your brand as soon as possible, unless you’re not attached to the name and are just using it temporarily while you test your proof of concept.

 

Protecting Logos – Conclusion

For those with the resources the best approach is to register both registered designs and trademarks. Having both types of registration gives you a level of protection that increases the range of situations in which you can stop others stealing your intellectual property. Design registration protects logos in ways that trademarking the logo does not. 

For example, if someone is using your logo on their website for a non-competing business, your design registration would be a powerful intellectual property right to require the website to stop using the logo. 

Copyright alone has the problems mentioned earlier. Your trademark registration would not help you because trademarks only stop others using the same sign to sell similar products and services. 

If there is no customer confusion, or sales involved (as in this example) then the trademark would be irrelevant.

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