by Kathleen Kuznicki, Esq.
Businesses work very hard on establishing their brand identity. That includes coming up with a name to communicate the value of their product or service to customers, as well as a logo to visually connect with their customers. After perfecting these concepts, a business will want to protect their name and logo so that somebody else doesn’t mimic them, and they ask me, can I copyright my logo?
Well, technically yes you can, but copyright is not the ideal protection for your brand/source identifiers. Copyright only protects your logo as an artistic expression; it does not protect your logo as a brand/source identifier. Protection of brand/source identifiers falls under trademark law, and if you are doing business across state lines, federal protection occurs through registration. Federal registration of a trademark gives the owner exclusive nationwide use of their mark for the goods and services listed in their registration.
A copyright, on the other hand, would only give the owner the exclusive legal right to reproduce, publish, sell, or distribute the logo as an original creative work. A work is considered original if it is not copied from some other preexisting work; it does not need to be novel or unique. This exclusionary protection provided by a copyright is too narrow for a logo. Someone can independently create an original artistic work similar to your logo and you could not prevent them from using it.
The legal definition of a trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of goods and services. A registered trademark protects your brand by providing you certain legal rights. Registration gives you a legal presumption of ownership of the trademark in connection with the goods and services listed on your registration. Anyone using a “confusingly similar” mark will be considered infringers, (unless they have established rights in their local area as a common law trademark before your federal registration—see below) and you can pursue them to stop using the mark and potentially seek damages, especially if the infringement is willful. Federal registration provides a public record; there is constructive notice nationwide of your claim, which means others have a duty to inquire to ensure they are not infringing others’ marks. So, even if someone independently creates a similar logo (that covers goods and services related to yours) you may legally be able to stop them from using their logo, and they should be refused federal registration, if they were to apply.
If you are not doing business across state lines, you can still protect your branding through state trademark law, but first, you need to build up your common law rights to your trademark in your local area. How do you do that? Essentially, the longer you use the mark, the more effort you put into your marketing, the more name and logo recognition you have with the your customer base, the stronger your common law rights to your mark. Unfortunately, under state trademark law, whether or not you can prevent someone from using a confusingly similar mark is very dependent upon the specific facts and circumstances surrounding the use of the marks and how these circumstances are interpreted under your particular state’s laws.
For more information on this topic, Kathleen can be reached at firstname.lastname@example.org.Share This: