Outstanding Questions About Copyright And Trademark

Logo and Brand identity designers have enough on their plates without worrying about copyright infringement and trademark lawsuits, but that is just what they will have if they aren’t acquainted with some of the questions and misconceptions concerning copyright and trademark. It isn’t rocket science by any means but it is involved and the boundaries do cross here and there and care needs to be taken to tread the straight and narrow concerning the boundaries. After reading a definition of copyright and trademark, how does the logo and brand identity designers recognize the pitfalls and avoid them? When the designer has done all he can do, at what point does legal counsel enter the picture?

Copyright is no more than protecting your creation. It can be created on paper, canvas, DVD, CD, computer graphics or any surface whatsoever. That it was created at all is the point and to protect it the designer needs to copyright it. Copyright only protects the surface on which the creation was accomplished, but does not protect the performance thereof. Meaning the copyright protects the creation of what was recorded on the CD, not the people covering the music or performing art. Copyrighting is done through the Library of Congress Copyright Office for a small fee and the creator holds the copyright for the term of his natural life or seventy years, whichever comes first. For the logo and brand identity designers, this protects the surface the brand and logo was created on, not the business that follows such creation.

Trademark, on the other hand, is an expression. It doesn’t have to be on a surface for it can be sound, movement such as a dance step, a jingle or some expression of the logo and brand identity designer’s creation with which to induce the consumer to recognize instantly the company’s product or service. An example of this would be Howard Johnson Hotels. The orange roof is recognized the world over. Another instance would be Pizza Hut, another roof that is recognized all around the world. These are trademarks that express a product or a service, distinguishable from like products or services although similar in nature. Trademark registration is accomplished through the United States Patent and Trademark Office.

Navigating In-Laws

The difference between the two lies in not creation, but expression, and here the logo and brand identity designer could use some help navigating the waters. The designer has created a brand and logo and has it copyrighted but does he need to trademark it? Automobile tires would be a good example here for they are not only a product but a service, as in the case of a consumer having the tires installed at the Goodyear store. Goodyear is a brand and a logo that provides a product and a service. HVAC would be another instance in which Trane provides a heating and cooling product and a trained tech provides the service of installation. Trademarks express a product or service while separating its creator from other products and services even if they are similar.

Relevant to that, the designer will wish to create a unique trademark that will not only stand on its own, making his brand instantly recognizable, but noticeably different from others of like design. This is going to include a search of trademarks which necessitates legal advice. If a creation is too close to other trademarks of its type, the creator of the trademark can sue for conflict of interest. The designer has two choices in design: a verbal or sound trademark or a word or symbol trademark. A combination of these are preferable because exclusivity can be proven whereas a single word or symbol could be too close for comfort to another word or symbol. If a combination is used in design, at a later date when consumer recognition and loyalty are achieved, the two can be separated because they will stand alone, as in the case of Ralph Lauren’s Polo brand and logo. When the designer institutes a search of existing trademarks, he can be sure that his design will not infringe upon another designer’s trademark.

Conversely if the logo and brand designate a product universally recognized and used it is possible that common law trademarking will apply. For instance, MLM involves products and services not always trademarked as in the case of insurance and legal services. In such cases, infringement would be hard to prove and the logo and brand identity designer can claim that his product or service is in the public domain and not liable to question.

A brand and logo designer is hired by his client to create an identity for the client’s product or service. The designer needs protection by copyright and trademarking so that his client doesn’t come back later and litigate because another company sued for infringement of either. The brand and logo designer uses these not only as protection but as a badge of legitimacy. In a world of brazen knock-offs and “fell off the back of the truck” unidentifiable productions, the designer claims legitimacy. Food store branding of every day things like drinking water or canned and frozen vegetables are in the public domain and don’t necessarily need trademarking, for example, and so the brand and logo designer cannot be held accountable for similarity issues. Additionally, a brand and logo designer will have these considerations in his portfolio for the education and possible employment of future clients.

Typeface and Font

One of the pitfalls the brand and logo designer will encounter is typeface and font. Typeface is a set of letters, numbers and symbols which have existed for hundreds of years and therefore not copyrightable. For example, both the generic shape of the letter ‘L’ and all of the elaborately more specific ‘L’s’ from the hundreds of years of font designs that have fallen into the public domain. So, typeface designs are not covered by copyright. On the other hand, Font is in sizing and shape which uses the typeface but is copyrightable. The creation resulting from these, however, is copyrightable and trademarkable. While simple script is not subject to copyright a combination of script and symbol or art is. A sketch of a tree, for instance, would not be subject to trademark and copyright for it is in the public domain, but add an elf to the sketch and it becomes copyrightable and trademarkable. If the designer uses lettering and symbols imaginatively to convey an idea of the product or service, two circles could be anything but add the word MasterCard to the design and he has a credit card logo. Instantly recognizable, the two symbols or the two words, each in different fonts, can stand alone which is trademarkable.

Correction of Misconceptions

The logo and brand identity designer will run across some misconceptions about copyright. If another designer takes an existing design and alters it, the resulting design is not his. Copyright includes derivative rights to the author of the original work which means that his design can be altered for another purpose but is still protected under the original copyright. No one else can do that but the designer of the original copyrighted work. Another misconception concerning copyright is because the designer’s logo does not have the copyright symbol attached it is not copyrighted. Nope, Creation constitutes copyright. Registering the creation protects the author. Copyright infringement is easier to prove due to the fact that the original design was copyrighted first.

The logo and brand identity designer will have to deal with misconceptions concerning trademark. If the design is uncomfortably close to another design it will create consumer confusion and this makes the mark unregisterable. If the designer merely changes a word in the logo for trademark, the same principle applies. The image and script in the logo must be clearly and absolutely original and must not come close to another of like product or service in order to be trademarked. A designer may not incorporate into his logo a generic term such as soap because the designer’s logo has to distinguish his client’s soap from others. Nor can the designer incorporate a proper name into the design such as Joe’s Soap unless the proper name describes the soap such as Joe’s Dish Soap. The designer may not use descriptive phrase in the logo because any phrase of that type is in the public domain and not subject to copyright and trademark. It is permissible to use a focus such as dried on food or caked on grease with regard to Joe’s Dish Soap.

International Conventions

The logo and brand identity designer will design a logo for a client that could be an international success. This necessitates learning international copyright and trademark laws. While there is no one body governing international trademark laws, there is one that guides applicants through international waters. Since copyright and trademark seekers file in their own countries, the Madrid System facilitates trademark registration in member jurisdictions through an international registration by World Intellectual Property Organization. Meaning that a designer will obtain trademark of his design in his home country and then this organization will take the registration to its members world wide. International copyright protection, however, is administered by two conventions, the Berne Convention and the Universal Copyright Convention. There are member countries in these conventions and protection for copyrighted materials filed in the United States is granted in the member countries. The UCC requires the presence of the copyright symbol in addition to the name of the author and the year of publication. Through these international regulatory bodies, a registered copyright or trademark is respected and protected by member countries with similar copyright and trademark laws and infringement on either can be prosecuted.

The logo and brand identity designer has now designed a logo that clearly represents the client’s product or service and he has researched the efficacy of his design. The designer is now prepared to register his design for copyright and trademark. To apply for copyright the designer will have three options: online application and two paper application options. The online application includes downloading tutorials and PDF files. This method is faster and cheaper, securely payable by credit card. Using this method the designer can track the status of his application, his application gets processed faster and he can upload files directly into the system. With paper applications one includes registration with printed bar codes. This requires Adobe Acrobat Reader version 8 or higher. In this option, too, files will be downloaded including FAQ and instructions. The other paper application has to be requested and mailed to the designer. All methods require a credit card, check or money order with the application. To register a trademark is much the same. The designer will have a form mailed to him or he can go online to apply. Both require payment in the form of credit card, check or money order and one method is faster than the other.

In the end, the logo and brand identity designer who researches extensively, properly designs his logo and properly files for copyright and trademark is protected against infringement. Legal advice will only be necessary in the case of infringement.

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    4 Responses to “Outstanding Questions About Copyright And Trademark”

    1. Julie says:

      Copyright and Trademark is a really interesting topic when it comes to logos. I was discussing logo/corporate tattoos over on my blog and this question came up. When I asked a lawyer, the response was basically as long as you aren’t seeking to turn a profit from them, it’s okay.
      I wonder how logo design software, that provides templates to users, will affect copyrighting and trademarking since you’d think that it would be conceivable that multiple people who purchase the software could come up with similar designs that may conflict.

    2. SITE HERE says:

      You really make it seem so easy with your presentation but I
      find this topic to be really something which I think I would never understand.
      It seems too complicated and extremely broad
      for me. I’m looking forward for your next post, I will try to get the hang of it!

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