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Using a defunct brand name and logo

 
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Deric87
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PostPosted: Sun Apr 06, 2014 10:57 am    Post subject: Using a defunct brand name and logo Reply with quote

Hi all,

I've been looking to final an answer for this right across the web and doesn't seem anyone has asked this yet, or at least I can't find it!

I'm interested in using an old/vintage clothing brand name and logo, including the established date as part of the logo. I would want to use old brand imagery from archive newspapers and such, so effectively would own and be selling product under that brand. In this sense, it would be re-launching and old brand, rather than just acquiring the right to use he name/logo for another product or service.

Is this possible? I am talking about small brands that have been defunct for many years, and not at all household names. It is important that I can use the established date and the brands heritage images/adverts.

I would expect to have to purchase the copyright for this logo but would this by default make me 'owner' of this long defunct brand if there is no current owner?

Any advice would be massively appreciated, really stuck on this one!

Many Thanks,

Dan
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AndyJ
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PostPosted: Sun Apr 06, 2014 12:16 pm    Post subject: Reply with quote

Hi Dan,
I'm glad you have noted that you would probably need to either buy or licence the copyright in the logo, because that is the major obstacle to what you propose. In my answer below I have assumed this company was UK based. If it wasn't, then you may need to do a bit more research on the local law on trade marks in the jurisdiction where the company's head office was registered.
The other trappings of a 'brand' are somewhat more ephemeral. The main one for which there is legal protection is, as already mentioned, a registered trade mark, but these lapse if they are not re-registered (currently every 10 years in the UK) and probably more significantly in your case, if they have not been put to genuine use for a continuous period of 5 years. There is also the common law tort of passing off but since this depends on there being existing goodwill in the brand, that would not apply where a brand had not been trading for many years, even if the brand was still well known within a certain section of the population.
Although we now also have Community Trade Marks within the EU, they only came into being in 1995, so it sounds as if it would be unlikely that they would be relevant to the brand you are interested in.
So that leaves the problem of trying to track down the current owner of any copyright which may exist in the logo. If there is no obvious person or successor company, you could try the historical records section at Companies House to see if the winding up of the original company was documented there. You could also check the IPO's trade mark database to see if the trade mark was once registered, and if so whether there was a registration agent appointed by the company. And if all that fails, try the Museum of Brands or a trade association for the type of clothing associated with the brand.
And finally try googling to see if there is a website which deals in the history of the company. Many old firms do have 'tribute' sites, often run by ex-employees, who may be able to shed light on the current owners of any intellectual property of the old company.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Deric87
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PostPosted: Sun Apr 06, 2014 6:29 pm    Post subject: Reply with quote

Hi Andy,

First off thanks so much for your detailed response, it's helped a great deal and I really appreciate your time and knowledge on the matter.

The brands I have considered are all old british brands yes, all defunct- in terms of trading as a brand for up to 30-40 years. The trademark for use of the brand names and logo (two separate copyrights from what I can tell) are also unregistered as this has now 'expired'. Would I tackle this first, before acquiring the copyright? What if there was no owner of any copyright associated with this brand at present?

Also, assuming I purchased the above trademark and copyright of the brand, would I then be the legal owner of just the name and logo, or this entire brand and its previous heritage and marketing material (imagery for marketing etc) as this is an area I am particularly concerned about. The ireason being I do not want to start a new brand but re-launch this old one- more akin to buying a company than a trademark, although of course in this case the companies no longer exist or trade, and have not for some time.

In using the brands heritage and authenticity am I infringing on common law by saying this brand now once again 'exists' and that I am owner simply by buying the TM and copyright?

Thanks once again for your informed replies.

Dan
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AndyJ
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PostPosted: Sun Apr 06, 2014 7:54 pm    Post subject: Reply with quote

Hi Dan,
First of all, if these brands have not been trading for over 30 years then any trade marks (whether they were registered or not) that may have once existed have now lapsed and anyone can reuse them if they choose. But that would be subject to any copyright which exists in the artwork of the logo. It is unlikely that the trade name is protected by copyright because it is probably too short to qualify (names and single words are not 'literary' works).
As you are probably aware the duration of the copyright term is based on the lifetime of the person who created the work plus (now) 70 years. This rule applies even if the owner of the copyright was the company who employed the artist who created the logo. So if the logo is very old indeed, say created in 1890, when the artist was aged 30 years of age and he might have lived to the age of 70, that would mean he died in 1930, and because the copyright law which applied then only added 50 years post mortem, copyright would have run out at the end of 1980.
But if the logo had been produced in 1920 by another 30 year old artist who also lived to 70 years of age, the logo will still be in copyright until the end of 2030, because any work still in copyright in 1995 (as would have been the case in this example: year of death 1960 + 50 years = 2010) gained an extra 20 years post mortem due to an EU Directive. If the person who created the logo is anonymous or their identity cannot reasonably be discovered then section 12 (3) of the Copyright Designs and Patents Act 1988 applies:
Quote:
(3) If the work is of unknown authorship, copyright expires—
    (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or
    (b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,
    subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

And since you mention marketing material, bear in mind that this too is likely to be subject to literary copyright.
So, once you have legally acquired a licence to use the copyright work, or determine using the formula shown in the extract above, that copyright has lapsed, you can go ahead and use all parts of the brand, including any residual goodwill, for your product(s). Obviously you would need to careful not to make any misleading claims about your products (we've been making underpants since 1850!) as that could fall foul of unfair trading and misleading advertising laws.
As for who might currently own any copyright, assuming it exists, copyright ownership passes either by inheritance in the case of individuals, or succession in title in the case of companies or bodies corporate. In your case, it is almost certain you would need to look for whoever acquired the assets of the original company when it ceased trading. The goodwill and branding may have been bought up by another firm in the same line of business. To discover if this was the case you would need to do a bit of research to discover how the company was wound up: was it bought out by or merged with another company, went into liquidation or receivership or did it simply cease trading? The last of these is most unusual with a medium or large company because there are almost always assets and creditors to be sorted out. Anyway, exploring these alternatives should give you a clue as to whether the goodwill is likely to have passed to another company.
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Deric87
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PostPosted: Sun Apr 06, 2014 9:05 pm    Post subject: Reply with quote

Thanks again Andy- this is really useful.

I think I have a fair bit of research to do, at least I know where I need to focus my time now! You've been a great help.

Thanks,

Dan
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