Copyright a Logo

When deciding to protect your logo or design it can be a bit confusing trying to decide how to protect it. After all, your logo is basically the face of your product line or your services so it makes sense that you'd want to do the right thing when it comes to ensuring that you have exclusive rights to it.

The question is should you copyright your logo or trademark your logo? The answer, surprisingly, may be both.

The US Copyright Office states "copyright protection may be available for logo artwork that contains sufficient authorship." What does this mean exactly?

Each logo or design is going to vary from the next in regard to being eligible for copyright protection, of course, but the key to understanding is learning what is meant by "sufficient authorship." Logos or designs that fall into any one of the two categories are not eligible for copyright protection:

• familiar symbols or designs, e.g. the peace sign, a single arrow, a Latin cross, etc.
• mere variations of typographic ornamentation, lettering or coloring, e.g. text in Times New Roman font, Text Using Only Sentence Case, text in purple

An even easier way to think about is to ask yourself one question about your logo – was there any creativity involved at all in designing the logo? If you're using a symbol you found in Microsoft Word or in a clip art program, then no. If you're using a logo you or someone else designed for you that contain a degree of creativity and/or uniqueness of some form or fashion, then yes. If you're not sure, feel free to email me directly at Shannon@tmexpress.com.

Even if your logo does qualify for copyright protection, do not assume it's the same as trademark protection. Copyrights and trademarks are fraternal twins – obviously related but look nothing alike. Copyrights protect the image itself whereas the trademark protects the image as it is used within the marketplace.

To protect your logo IN CONNECTION with your product line and/or services, a trademark is the way to go. The purpose of having a trademark, be it for a name, logo or slogan, is to obtain exclusive rights to the mark within your particular industry. This ensures that there will not be customer confusion when it comes to your goods/services and another within your industry.

Filing a trademark for a logo is similar to filing a trademark for a name. Comprehensive research is likely needed to ensure that the same or similar design is not already filed. I know what you're thinking – I know my logo is unique OR I paid for my logo to be designed so I know no one else has it – we hear that a lot. The one thing to always remember about trademarks is that the mark need not be exact to another. If there's a chance for customer confusion, it can be a problem.

If you'd like some help deciding if your logo should be searched and/or filed for a trademark, feel free to email me directly at Shannon@tmexpress.com.

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Breaking Down the Code

Last month we took a quick look at how to conduct a logo search at the USPTO. This month let's look closer at the USPTO Design Code Manual.

All designs have a 6-digit code, which the USPTO assigns to each filed design. The design search code system is very Dewey Decimal-esque in that each 2-digit section denotes a specific category. Let's take a look at a couple of famous examples:

First two digits, the Category: 02 = human beings

Next two digits, the Division: 05 = children

Last two digits, the Section: 01 = heads, portraiture, busts of children not in profile

The Gerber baby logo is categorized as 02.05.01

Now let's look at a design that contains several codes. This will illustrate just how complex filing a trademark for a logo can be, in terms of researching a logo and providing the correct description on the application to the USPTO.

Mr. Peanut, the logo and mascot of Planters Nuts is categorized into SEVEN different design codes:

02.01.32 - Astronauts (men); Frogmen; Men, other, including frogmen, men wearing space suits and men wearing monocles; Monocles (men wearing)
02.01.34 - Monsters (not robots); Other grotesque including men formed by plants or objects
04.07.02 - Objects forming a person; Person formed by objects
05.07.05 - Nuts (edible), With shells
09.05.02 - Top hats
10.03.02 - Canes, walking; Shepherds crook (staff); Walking sticks and canes
16.03.08 - Contact lenses; Lenses, optical, and spectacle; Monocles

So you can see even a seemingly simple design, a peanut figure wearing a top hat, cane and monocle has a very complex design labeling assigned to it.

Please see here for further details about our Federal Design Trademark search services.

Logo Search: Trudging through the USPTO

Searching for designs on the USPTO site is a bit tricky. I'll explain it step by step.

First, go to this link. This is the searchable design search code manual. Type in simple keywords that describe your logo. For instance, typing in telephone brings up the 6-digit codes for telephones, telephone poles, answering machines, etc. Make note of all the 6-digit codes relevant to your logo.

Second, go to this link. This is the main trademark hub page. From here you'll see 2 columns. Look at the right hand side for a link that's titled Search. Click on that.

Now click on Structured Form Search (boolean). In the first search term box, type in the 6-digit code, no spaces & no dots. Change the field to Design Code. Stopping here will likely result in too many hits to look at so let's use the rest of the search boxes to narrow it a bit.

Change the operator to AND. In the next search term box, choose one keyword that describes your goods/services, e.g. clothing, software, etc. Change the field to Goods & Services. Now click Submit Query.

You should then see a listing of marks that you can view in more detail.

I've been in the trademark field for 14 years & I do not recommend that anyone conduct this logo search & consider themselves to be done. There are so many nuances within the USPTO as well as with trademarks in general that the likelihood of missing something is high. However, I feel the above provides a good snapshot of how involved searching logos can be & is a nice primer for those folks interested in protecting their logo.

You've got to keep the USPTO's guidelines in mind. Logos need not necessarily be exact to be considered a similarity. They take into consideration things such as similarities in Appearance or Meaning as well as similarity in industry. Your logo may look like one definite thing to you but you have to emotionally detach yourself from it & see all the inherent possibilities. It's those possibilities that will also have to be searched.