Some of the most valuable assets a business has are its trademarks, and some argue that logos are the most important kind of trademarks.
Good logos, such as the “swoosh,” an apple with a bite taken out of it, and a pair of golden arches, immediately call to mind the brands they represent.
Logos are somewhat unusual in the world of intellectual property, because they can sometimes be protected by both trademark and copyright laws.
Generally speaking, trademarks protect commercial names, phrases and designs that identify and distinguish the source of one party’s goods or services, while copyrights protect “original works of authorship fixed in any tangible medium of expression” such as artwork, books, music, software and movies.
Each type of protection has its own pluses and minuses, so where possible, it’s best to take advantage of both forms of protection.
Because trademark law is designed to protect against someone else using a mark in a way that causes consumer confusion, it’s possible for someone to lawfully copy every detail of your logo and use it to sell their own products, so long as they aren’t creating a “likelihood of confusion” as to the source of either their products or yours.
Copyright law, on the other hand, can protect your logo against use by someone else, whether or not there is any likelihood of confusion. However, a logo won’t have copyright protection unless it has a certain minimum level of creativity.
Simple logos consisting of basic geometric shapes, motifs (e.g., a fleur-de-lis), simple color variations and short phrases will generally not be eligible for copyright protection and can be protected, if at all, by trademark law. Artistic pictorial logos are, however, often protectable by copyright.
Although trademark law protects both the words and the images in a logo, copyright law generally applies only to the graphic elements, since short phrases aren’t copyrightable. That is, your copyright will usually cover only the pictures in your logo, not the slogan or brand name.
Another “minus” of copyright protection is that copyrights must be registered with the Copyright Office (or have been rejected for registration) before an infringement lawsuit can be filed. Trademarks can be protected without being registered, though registration provides numerous benefits.
Copyright owners are entitled to send “takedown” notices pursuant to the Digital Millennium Copyright Act (DMCA), requesting that service providers take down digital content that infringes their copyrights. There is, however, no analogous law for trademarks.
In addition, the victim of a copyright infringement is much more likely to be awarded attorney fees than the victim of a trademark infringement, so long as the copyright was timely registered.
As you can see, if your logo is eligible for copyright protection, you should seriously consider registering your copyright in that logo, as well as your trademark.
Please feel free to contact us if you have any questions about protecting or enforcing your intellectual property.
Photo by Chelsea Fernando on Unsplash
