Copyright a Logo or Trademark?

'Is it legal', 'can I do this' type questions and discussions.
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Lee-Anne333
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Copyright a Logo or Trademark?

Post by Lee-Anne333 » Wed Jul 02, 2008 8:49 pm

I am wanting to protect my logo; however, I have limited funds.

Can I copyright a logo? I have read this at the Copyright Registry website:

• A logo that includes artistic or design elements, (i.e. not just the name on its own), is legally regarded as being a work of artistic creation and therefore will be protected under copyright law.

How do they measure the amount of artistic design for it to be registered?

Of course, my other option is Trademark which is normally applied to logos; however, Trademarking is a lot more expensive.

Any advice?

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CopyrightAid
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Post by CopyrightAid » Thu Jul 03, 2008 9:00 am

They are correct that logos sit in the middle ground where both copyright and trademarks can be applied.

How do they measure the amount of artistic design for it to be registered? - there is no 'magic formula' for that, it will always be an objective to some degree; but as long as the work contains artistic elements (i.e. stylizations of the font, or inclusion of other non text elements) to make it significantly 'unique' copyright will apply.
I would not get to concerned about this, I suspect they are covering themselves to stop people trying to register names (a name is not a copyright work in its own right).

From a copyright perspective a logo is an artistic work - therefore if someone else uses/adapts your logo for their own use without permission, they are infringing your copyright.
If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark.

If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorized use of a registered trademark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.
Source: http://en.wikipedia.org/wiki/Trademark# ... ark_rights

Notice that the first paragraph of the quote deals with UNREGISTERED trademarks. I.e. you get significant automatic protection even without registering the trademark.

There is a certain kudos about a registered trademark, and they may be easier to enforce, though you are right that they are more expensive - particularly if you bear in mind that a trademark is granted at a national/world region level (i.e. a UK trademark only applies in the UK - it won't help you in America).

Fortunately, the law as a general rule is not an ass (contrary to popular belief ;) ), and for most small/medium businesses, the automatic protection under passing off/tort rules is sufficient.

Lee-Anne333
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Unregistered Trademarks

Post by Lee-Anne333 » Fri Jul 04, 2008 1:50 pm

First off, thank you for your useful information. You have helped me understand a tricky issue.

Now, in response to one thing you mentioned above, that in "some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off" Does having this "unregistered trademark" copyrighten protect me even further, or are Copyrights and Trademarks separate entities?

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Post by CopyrightAid » Fri Jul 04, 2008 2:41 pm

Well.. Copyright and trademarks are separate areas of IP, but if we are comparing and unregistered trademark and copyright, I suppose you could say that the two are very similar - There both provide automatic protection for the owner.

Your question Does having this "unregistered trademark" copyrighten protect me even further? - do you mean registering the logo? I'm assuming Yes because of the context of the earlier post. You don't 'copyright' an unregistered trademark (copyright is not a trademark) but the fact that you registered your logo would certainly be additional evidence on your site in a passing off case, so I suppose in that regard, yes it would help.

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lesson time :)

Post by CopyrightAid » Fri Jul 04, 2008 5:11 pm

You should be clear that there is a difference between copyright and trademarks.

Copyright:
In the case of your logo, it is a copyright work, because it is a work of artistic content (in presumably couples you company name/acronym with colour/formatting/design/stylisation and other artistic elements and thus taken as a whole is an artistic work and therefore subject to copyright.

Copyright applies in so far as it is an artistic work - i.e. an unauthorised copy or adaptation of your logo may constitute an copyright infringement. Copyright will not protect the company name itself per se - BUT as long as you are out there actually trading you are protected by passing off legislation.


Trademark:
A trademark is a device that uniquely identifies a product/service or company in the minds of the customer.

In this respect the logo is also likely to be a trademark - in so far as it is an identifying 'mark' of your company.

If the name is significantly unique it may also be a trademark. Likewise, elements such as slogans and straplines may also be trademarks - if they are used to associated your product in the mind of the customer.

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