Can You Sue if Your Logo Is Not Trademarked?

Your company’s logo is a major component of its public image, and it is essential that you protect your identity in the public eye. While it is usually best to apply for trademark protection for your logo as early as possible, if you haven’t trademarked the logo, you may still be able to prevent a competitor from using your logo through litigation depending on the circumstances in which it is used.

Although registering your logo with the U.S. Patent and Trademark Office or your state’s secretary of state office solidifies your claim that it is a trademark, registration isn’t always necessary to establish trademark rights. Any time your company uses a logo to identify its products or services, you establish common-law trademark rights. Common-law trademark rights may allow you to sue a competitor to prevent it from using your logo, particularly if it is in a way that attempts to portray itself as your company to consumers.

Even if your logo was trademarked before the incident, in some instances it is permissible for your competitor to use your logo without violating your trademark. The Federal Trade Commission encourages comparative advertising, in which a company uses other companies’ trademarks in a method that contrasts products or services between the companies. In these cases, your logo isn’t being used to deceive consumers into believing they’re doing business with your company but as a means to inform them about product differences.

While copyright law doesn’t apply to company names or advertising slogans, it applies to artistic expressions. Any image, such as a logo, automatically receives copyright protection as soon as it is created. Copyrights, which differ from trademark rights, provide the copyright owner exclusive rights to copy and distribute an image. Because of this, using your logo without your permission may be a violation of copyright as well as trademark law.

While you may sue anyone who you believe violates your trademark and copyright rights, many intellectual property owners begin infringement actions by issuing a cease-and-desist letter. These demand letters inform the infringing party about your claims on the intellectual property rights, and provide a nonbinding order to end the infringement within a reasonable time frame. If your intent is merely to halt the infringement, this may be the most direct and affordable route. However, if you seek damages for violation of your intellectual property rights, demand letters are merely a first step before litigation, even if you haven't trademarked your logo yet.