It takes a lot of work, creativity, and money to create a business logo. A professional looking logo is a great business asset. And it makes sense if you want to safeguard your logo with trademarking and copyright protection. The great news about copyright protection that it is automatic. Protection exists for your business logo as soon as it is created. You can publish a copyright or trademark notice and attach it to your business logo. You can also trademark, and in some cases, register copyright ownership of your logo.
Should you copyright a business logo?
The quick answer is that you can’t copyright a business logo. Business logos, slogans, names, titles, or other designs and symbols used for branding cannot be copyrighted. But, your business logo can be protected by a trademark.
How long does copyright protection last?
Copyright for a particular work depends on several key factors such as:
- Whether the work has been published.
- The date of the first publication.
Typically, works created after January 1, 1978, copyright protection lasts for the life of the creator plus an additional 70 years. The law automatically protects all works created and fixed in a tangible medium of expression. For joint work created by two or more publishers “who did not create the work for hire” the term of copyright lasts for 70 years after the last surviving creator’s death. For works “made for hire” and pseudonymous and anonymous works, the term of copyright is 95 years from first publication or 120 years from creation.
Is it better to trademark a business logo?
Generally, it is the right business decision to trademark a business logo. A trademark or “design mark” will provide legal protection for your business logo. Click here to trademark your business logo.
Should I trademark or copyright a business logo?
It is not required to trademark or copyright your business logo. You own the copyright as soon as you design the logo. And you win the trademark as soon as you use the logo. Taking the extra step to trademark your business logo is a smart move. It is relatively inexpensive to trademark a logo and it protects you from losing your rights in case another entity uses the same or similar mark. Registering your trademark provides an exclusive right to the mark.
Copyright vs. Trademark Business Logo Protection
The only way to protect your business logo is through trademark, copyright, or both. This is confusing for many. Some business logos may actually qualify for both trademark and copyright protection.
What is copyright protection?
- Works of art – literary, dramatic, musical, poetry, novels, music, songs
- Computer software
- Website content – photographs, writings, artwork
Not everything is copyrightable in business. For example, you cannot copyright your domain name or the ingredients of a recipe if you own a restaurant. Another important point about copyright protection is that work doesn’t have to be published to fall under copyright protection.
Who owns the copyright?
Normally, the creator of the work is the copyright owner. But if the creator is an employee or a contractor, then the work is a “work made for hire.” Consequently, the contracting party or the employer is the copyright owner. Co-creators jointly own the copyright in the works they have created together.
What is trademark protection?
We use trademarks to prevent confusion in the marketplace, not copying. As an entrepreneur, filing for a trademark might not seem necessary. But if you fail to file for a logo trademark, and you find an entity using your business logo or name after you have been running your business, the fight comes down to proving “who” used the mark first? You basically make your life more complicated than it needs to be.
How to trademark a business logo?
Registering a trademark is a fairly simple process. If you don’t mind spending the time and doing a little bit of research, you can trademark your logo on your own. You can file an application online in less than a couple of hours, without the help of an intellectual property attorney. You start the trademark registration by visiting this website.
How do I check to see if another company registered the same or a similar mark?
On the USPTO website, you can do an electronic search for registered trademarks. The search engine allows you to search for registered trademarks and pending trademark applications. The search feature is a great tool to prevent registration of a trademark that could be confusing the market.
It is critical to use the TESS search feature to verify if a trademark has already been registered or applied for that is:
- Similar to the trademark you want to register.
- Used on related products or services.
- Live, or actively used.
Just because you can’t find a similar mark, there is no guarantee that you will successfully register your mark. The USPTO may find a conflicting trademark or identify another legal issue that bars your trademark application.
How long does the trademark registration take?
You can expect a response to your trademark application in six months.
How much does it cost to submit a trademark registration?
The trademark application cost depends on how you file. If you file your trademark application on your own, you only pay the U.S. Government filing fee which is $275 per class of goods. For example, if you want to trademark a business logo, the government filing fee will be $275.
If you hire an intellectual property attorney to submit your application, you can expect to pay an additional fee. You can expect the attorney fee to be much higher than the government filing fee. The attorney’s fee will normally include consultation time, trademark research, the logistics required to prepare and submit the trademark application. If you work with an attorney, insist on a flat fee, so there are no surprises in the end.
Trademark filings can be complex procedures and there may be some additional costs. If you haven’t been operating your business at the time of the trademark application, you need to begin offering your service or product for sale within one year of the filing date. To verify that, you will need to submit additional paperwork. The per-class filing fee to the U.S. Government is $100. If you work with an attorney, check their fee for this service.
Are there any ongoing costs associated with trademarks?
After your trademark has been successfully registered, the USPTO requires you to monitor and police the protection of your mark. The USPTO requires trademark holders to monitor and report unauthorized use. Law firms offer a trademark monitoring service, usually for a yearly service fee. If you want to save some money, you could sign up for a trademark watch service which is much less expensive than an attorney.
Should I hire an attorney to register a trademark?
Working with an intellectual property attorney to help you file your trademark application can save you a lot of time. If you have the budget to hire an attorney, it is highly recommended. But if money is tight and you are the hands-on type, you could take your chances. Keep in mind that trademark registration is not automatic. Working with an attorney you greatly increase your chances of trademark approval.
Letting an attorney help you with trademarking your business logo allows you to focus on your business, not the trademark application procedure. Intellectual property attorneys understand the process and know what it takes to get your trademark approved. Even if you don’t hire an attorney, it is not a bad idea to at least talk to an intellectual property attorney before you submit your trademark application.
Can I protect a business logo that I don’t use?
You can only protect your mark if you are actively using it. If you are not actively using your logo, you can’t stop other businesses from using it. You will find that a court will only give minimal protection if you have a registered trademark for years, but you haven’t used the mark.
Can I use a registered trademark logo?
To use a registered trademark logo or symbol ® you must request and receive permission from the U.S. Patent & Trademark Office (USPTO). You can start your trademark registration here.
What symbols can I use to show a trademark?
- ™ for the unregistered trademark
- ℠ for the unregistered service trademark
- ® for the registered trademark
How do I type copyright and trademark symbols?
You can easily type copyright and trademark logos in Microsoft Office.
- To type the registered trademark symbol ®, press Ctrl + Alt + R
- To type the trademark symbol, press Ctrl + Alt + T
- For the copyright symbol, type Ctrl + Alt + C
What is the registered trademark symbol?
The registered trademark symbol ® is one of the symbols you can use with your trademark to show that you either have a federal trademark registration or that you are claiming a trademark right in your trademark. You are not allowed to use the registered trademark symbol ® prior to receiving your trademark registration. Using the circled R ® without trademark registration is a violation of federal law.
What if my logo is art? Can I copyright it?
A copyright may be able to protect your business logo as an artistic work. If you can show an exceptionally intricate or creative business logo design, it may qualify as a copyrightable work of art.
Graphic designers and businesses register their logos. Registration with the U.S. Copyright Office substantiates a basis for enforcing the copyright in court and potentially receiving statutory damages in addition to attorney’s fees.
Besides, an organization may record intellectual property with the U.S. Customs Office. The process creates a protection against the imports of materials into the United States if they carry an infringing logo.
Is my business logo copyrightable?
For your business logo to be copyrightable, it must reach a requisite level of creativity. Many logos are not eligible for copyright. A business logo that doesn’t contain a sufficient amount of creative and original or artistic authorship might be unable to obtain copyright registration.
The eligible elements of a business logo under copyright law are:
- Graphic and Pictorial elements used in trademark
- Graphic representations of characters (i.e., Mickey Mouse, the Pillsbury Dough Boy)
What are the benefits of copyrighting a business logo?
There are clear advantages of copyright registration of an eligible business logo.
Can I transfer copyright to another entity?
Like any other business asset, you can transfer copyright to another entity.
What is trademark infringement?
The unauthorized use of the registered trademark of a person or an organization is a trademark infringement. For example, if you wanted to start a search engine and decided to use Google’s recognizable multi-colored logo on your website, this would be a case of trademark infringement. Customers would be confused about the trademark, and you would essentially profiting from the goodwill that Google has created over the years. Put differently, customers would mistakenly use your product (the search engine) assuming it is the “real” Google search engine. In such a circumstance, Google could sue you for trademark infringement. Google would most likely win in court, requiring you to stop infringing, and the company could also win money damages.
How can I prevent trademark infringement?
Monitoring is a critical part of trademark infringement protection. Failing to monitor your trademark could result in loss of federal protections. Software monitoring is widely used to monitor trademark infringement. Your trademark attorney might offer monitoring for you as a proactive measure. Monitoring is an effective step to stop unauthorized use of your trademark.
What should I do if someone is using my business logo?
Usually, the first step in case of trademark infringement is to send a cease-and-desist letter. Some people write the cease-and-desist letter on their own; others hire attorneys for the same job. The cease-and-desist letter is a formal way to demand an entity to stop using your trademarked business logo or name. Sometimes it is an honest mistake, and the entity infringing will stop using your mark immediately.
Businesses with nefarious intentions might completely ignore your cease-and-desist letter. In that case, there is a trademark or copyright infringement; it is best to consult an IP attorney. If the business refuses to stop using your mark, it might be time to file a lawsuit. Copyright lawsuits are filed in federal court if it spans more than one state. Local copyright infringement lawsuits are filed in state court.
If you file a lawsuit, you must file for a trademark. When you get your day in court, you can argue on “common law” rights to a name. Your chances of winning the lawsuit are better if you filed for federal trademark protection with the USPTO.
What are the most common trademark mistakes?
The best way to protect your business logo is to avoid trademark mistakes. If intellectual property is not your specialty, it is easy to get tripped up. Failing to seek legal advice could result in serious trademark mistakes that could damage your business down the line.
Here are some of the most common trademark mistakes, you should avoid at all costs:
- People often confuse copyright with a trademark. The two are not the same. Copyrights protect original works of authorship. The purpose of a trademark is to avoid confusion in the marketplace. Most logos are trademarkable but not copyrightable.
- Not understanding how trademarks fit into your intellectual property portfolio. The goal of registering your trademark is to distinguish the source of services and goods. Trademarks can include business logos, symbols, words, or a combination. Trademark protection is a smart business practice.
- United States law protects “first use in commerce”. Even if you haven’t registered a mark, you still have trademark protection, as long as you can prove “first use in commerce.” Let’s say, for example, that a restaurant owner in San Diego County, California opened a business called “Rome to Sea Restaurant.” Let’s also assume that she advertised her restaurant throughout the county using flyers and brochures. Even without seeking trademark protection from the USPTO, the restaurant owner is said to have a “common law trademark.” A common law mark protects the owner’s rights as the first person to use “Rome to Sea Restaurant” in commerce. Note, however, that common law trademarks are geographically limited. In this instance, the trademark would likely only be protected within San Diego County. This the reason you should always to a trademark search before you decide on the name of the business and file your trademark application. If another business using the same or a similar name, you could be subject to a trademark infringement lawsuit.
- Using the wrong trademark symbol is a common mistake. There are two main types of trademarks; common law trademarks and registered trademarks. When the business owner applied for a trademark with the USPTO, she can expect the greatest legal protection. Registered trademarks are assigned the ® symbol. It is considered fraudulent to use this symbol with unregistered marks. A business can use the ™ symbol affixed to a logo without a trademark registration or application. In other words, you are free to use the ™ symbol on business logos even if you have not applied for trademark registration.
Trademark mistakes are easy to make. Do your research to protect your business logo.
You can get more information about trademarking your business logo here.
Disclaimer: The content in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice.