It sounds pretty simple when you hear the legal experts describing it, but the reality of it can often be something quite complicated.
Copyright concerns any work that meets two criteria. The first is that it should be a creative work of expression, and the second is that it should be fixed onto a tangible and real medium of expression.
Trademark, on the other hand, covers slogans, business names, and anything else that is used to identify a business in the marketplace.
Finally, we have patents, which cover inventions and ideas.
This is all good; we all have a fairly good idea of how each of this works and what it means. The question is, where do logos fall in the grand scheme of things?
The thing about logos is that they are among the things in intellectual property law where there is plenty of overlap. On the one hand, you can copyright a logo while on the other you can trademark it. In fact, many businesses use both copyright and trademark to protect their logos.
You may be wondering where to draw the line, which is quite legitimate. The answer is to understand exactly what is protected by trademark and copyright. While you won’t get a clear demarcation between the two when it comes to logos, you will at least have a better understanding of the gray area that they occupy.
Logos and Trademark
When most people think of logos and intellectual property, they think of trademark. It’s unreasonable; trademark is all about protecting the things that a business uses to identify itself in the marketplace. Logos are among the items used by businesses to identify themselves so it is understandable you would assume they automatically fall under trademark. In fact, the logo of a business is arguably the most significant means by which that business can be identified. Because of this, logos that are not copyrighted are generally protected by trademark and can be enforced under trademark law.
Trademark is actually much broader than copyright in many ways. Trademark expands to such things as designs, typefaces, colors, names, and so on, while copyright doesn’t. However, there are also ways in which trademark is narrower in range than copyright. Copyright prohibits all forms of unlicensed copying that do not follow the rules of fair use. Trademark, on the other end, only concerns itself with how the mark is used and how it may cause confusion in the marketplace where the business resides.
Consider the case of Acme Airlines and Acme Hardware. While Acme Airlines has a trademark on their name and can, therefore, sue any other company in the airline industry that names themselves in a similar fashion, they can’t do much about Acme Hardware because the two companies are in completely different and unrelated industries.
When it comes to logos, they are indeed used to identify groups and businesses and can be trademarked. Trademark does have its advantages since it covers many things. However, it also has the disadvantage of being narrow in its scope in many ways. To put it bluntly, trademark is designed to prevent confusion about identity in the marketplace. It won’t, however, protect you from copying. It will, therefore, limit the many ways in which the logo can be infringed upon.
Logos and Copyright
Copyright is a little stricter in the thresholds it applies. For anything to be eligible for copyright protection, it has to be at a certain level of creativity. If your logo is going to be protected by copyright, it has to be artistic enough that it is considered a legitimately creative work of expression. The thing about most logos, however, is that they do not reach that threshold.
Copyright is incapable of covering such things as the design, colors, and name of the logo, and so most logos are too simple by copyright standards to be protected by copyright. There are, however, some logos that are ornate enough to be copyrightable.
That’s where the real confusion lies when it comes to logos. There are plenty of logos that qualify for protection by both copyright and trademark. There have been many cases that touched upon this, such as the Omega vs CostCo case, where a logo that was stamped on a watch was protected by copyright. Importing the watch would, therefore, be an infringement on the copyright.
If a logo is considered artistic enough to be copyrightable, apart from its consideration as a means with which to identify a business, then it can be copyright protected. The two rights are not mutually exclusive and so anyone can both trademark and copyright their logo.
How Can You Find Out if a Logo Is Copyrighted?
A logo can either be copyrighted, trademarked, or both. The creator of a logo will automatically own the copyright to that logo, as dictated by the copyright laws of the United States of America. This is, of course, unless the creator has sold the copyright to someone else, in which case that someone else will now own the copyright. A logo can also be trademarked when it is used to identify a business in the marketplace. The best thing to do is to avoid using a logo until you figure out if there is a copyright on it.
Look for an Identifying Symbol
The first step is to look for a symbol, mark, or name on the logo that shows it has been reserved. If the logo is either copyrighted or trademarked, it will typically have the word “copyright” somewhere, including the year in which it was copyrighted and the name of the holder of the copyright. It may also have the symbol © somewhere.
You may also be able to find the " ® " symbol that shows the logo has been trademarked. The symbol stands for “registered trademark." The images or signs in the logo may have been copyrighted by the artist who came up with it, but the trademark will be owned by the company that uses the logo. There are many cases where it suffices to look for a trademark, rather than a trademark. Such is the case with the McDonald’s logo. The registered trademark symbol will often include the name of the company that owns the trademark.
Search the Databases
You can search for the mark either at the United States Patent and Trademark Office, also known as a USPTO search, or the United States Copyright Office to find who owns the trademark or the copyright on the logo. If it’s trademarked, you will always be able to find the owner because all trademarks need to be registered. If you’re looking for the owner of the copyright, it will be a little more complicated than that. There is no law requiring the registration of a copyright. What that means, basically, is that even if you do not find anyone who owns the copyright, it doesn’t mean the copyright isn’t owned by someone. There is always the chance you’re dealing with an unregistered copyright that might one day haunt you.
The best thing to do is to create your own logos so that you are sure they are your own work of creative expression. If you’re using a logo that you didn’t create, then always assume that someone has copyrighted the logo unless you can conclusively prove that the logo is in the public domain.