If a company is defunct, can it's logo be used freely?

[nho09]

Hi,

I'm selling tee shirts on various websites (eg Zazzle, Cafe Press etc). The majority of my content relates to 'nostalgic' company logo's and designs.

Is it possible to use a logo of a defunct company (eg. PanAm)?

Many thanks,

[AndyJ]

Logos can be subject to copyright and trademark law. To gain full protection, trademarks have to be registered in the jurisdiction where protection is sought. Unregistered trademarks can be protected under common law, normally through the tort of passing-off. In the UK registration lasts for 10 years but can be renewed indefinitely, but the mark must be in use to retain protection. On that basis, the mark of a company which is defunct and has not sold the goodwill of its business to another company which continues to use the mark, it is likely that all protection from trademark legislation is also defunct. Furthermore, there is little chance of an action of passing-off because the original goods or services to which the mark related are no longer available. However, in the case of PanAm, the brand was bought by Charles Cobb CEO of Cobb Partners, and has been re-used a number of times, the most recent being in Novemeber 2010 by Pan American Airways, Inc. The brand is also still in use with PanAm Railways.
Because it is a piece of graphic art, a logo is normally also protected by copyright. Copyright (in art) subsists for a period of seventy years after the death of the author. As PanAm was founded in 1927, it is reasonable to assume that the creator of the logo could either still be alive or have only died in the past fifty years, so it seems likely that copyright in the logo will still be extant.
You would need to apply the same analysis to any other logo you proposed to use to see if copyright was likely to still be in force.

[nho09]

Many thanks AndyJ, a very comprehensive answer!!

It is frustrating trying to establish if trademark or copyright do actually exist on some logo's, for example, old petroleum or gasoline logo's from the US. I would also like to use older logo's of existing companies such as 'retro' type logo's from the 50's, 60's & 70's (e.g. RC Cola or Hubba Bubba).

I have tried on numerous occasions to contact companies (or receivers) regarding use of their logo and find that 95% of the time, I get no response! Is it fair to assume on some occasions that the representative(s) of that company don't really care? What if they know that the logo has no copyright or trademark coverage but couldn't be bothered responding? In this case, do you think it would be acceptable, when selling a branded shirt, to display a message/disclaimer to the effect 'Approval for use of all logo's on branded clothing is sought prior to publishing, if you own the copyright to this logo or image, please contact us with supporting information and the item will be removed immediately'??

[AndyJ]

The easier part to look at is that of trade or service marks, because generally speaking, to gain legal proection they either have to be registered (and you can check databases in the UK and US to see if a trademark is currently registered) or to be in use in a manner where there is current goodwill attached to that brand which would be damaged if the logo etc was used in a way that could be considered as passing-off. In other words if you have made strenuous efforts to discover if a brand's logo is in use and you can find no evidence that it is, you are in a stronger positiion to use the logo on tee-shirts etc, on the basis that the trademark rights have either lapsed or been abandoned.
Copyright is much more difficult because it exists from the time the artwork etc was created and does not need to be registered or otherwise asserted to maintain its validity, which as I mentioned previously lasts for 70 years after the death of its author. If you are unable to find out who owns the copyright, the item can be termed an orphan work, but unfortunately this still doesn't mean that you can assume the unknown author has abandoned his rights. Only where it would be reasonable to assume that the author had died more than 70 years ago could you use a copyright image with impunity. For any company which was formed during the 20th century, (ie in the last 110 years), I don't think it would be reasonable to assume that this was the case.
However if these logos mainly apply to American products/companies, it is highly likely, due to their copyright laws, that the actual copyright was owned by the company which commissioned it, and if that company is truly defunct, then there may not be anyone who will enforce that right. The actual author can't as he no longer owns any copyright (although he does have certain moral rights, for instance to be credited as the author, but this is rarely invoked with logos due to impracticability). On that basis, if after thorough searching you cannot discover a current owner or successor in title, the chances of anyone trying to enforce copyright seems much reduced. Only you can decide whether that is a risk you are prepared to take.

[nho09]

Thankyou again AndyJ. Now all I have to do is convince the 'content moderators' of some of the 'design & sell your shirt' sites that their intial review, investigation & reporting of trademark & copyright needs to be more thorough (for both parties).

Thanks again.

[typonaut]

A disclaimer, as suggested, is ineffective (Arsenal Football Club v Matthew Reed).

There are at least two issues her with regard to the use of logos, as Andy has pointed out: copyright and trademark. If the logo is merely a device (ie no lettering/words), then the issue of trademark is fairly straightforward - as indicated, is there an existing registration for the mark.

Where the mark contains a word/text (eg PanAm) then it is more complicated, since the name itself may be protected regardless of the graphic representation. As Andy has indicated someone is still using the PanAm name.

So, using an old Coca-Cola or Shell logo, with text, is probably going to end up with a bad result for you.

With regard to the PanAm logo (as last used by the airline in the 1980s), I suspect that this design is rather more modern than the founding of the airline. Wikipedia indicates that this logo has been in use on railway wagons since 2006, so is most likely protected by trademark:

http://en.wikipedia.org/wiki/Pan_Am

This page appears to date the blue globe PanAm logo from 1955:

http://www.panamair.org/History/logos.htm

Which, if correct (I wouldn't doubt this, if asked I'd guess late 50s/early 60s), indicates that it has copyright protection.

[hnoor0055]

I get no response! Is it fair to assume on some occasions that the representative(s) of that company don't really care? What if they know that the logo has no copyright or trademark coverage but couldn't be bothered responding?

[AndyJ]

Hi hnoor0055,

I'm not sure if you are the same person as the original poster (nho09) of this thread.
Anyway, I think your assumption is reasonable in the circumstances.