Westchester Women's Bar Association

Artistic Logos May Receive Trademark and Copyright Protection

Entrepreneurs are always seeking intellectual property protection for their brands, inventions, and original works of authorship. Certain intellectual property may be able to receive protection in more than one area. An example would be logos that contain artistic design. Certainly if an entrepreneur could receive federal protection both as a trademark and a copyright, it would be prudent to file applications with both the United States Patent & Trademark Office and the U.S. Copyright Office.

Each type of legal protection will serve an independent purpose. To receive trademark protection, it is necessary to be using the design logo to either brand goods or services. There will also need to be use of the design logo in interstate commerce. See the firm web page entitled, For The Purposes Of Trademark Law, What Is Use In Commerce to understand this prerequisite to filing a trademark application. The trademark protection would extend to the goods and/or services identified in the application. And for the protection to continue indefinitely, the trademark owner would have to continue to use the design logo in connection with the goods or services described in the application, file post registration documents and pay the required USPTO filing fees. The objective of trademark law is to avoid causing consumer confusion in the marketplace as to the sources of two products or services.

Copyright law may also extend protection to the same logo containing artistic design if it is an original work with some creativity. Copyright provides the owner with the exclusive right to reproduce, distribute work or copies, make adaptations based on the original work, and display the work or perform the work. Copyright will extend protection to original works, including works in the area of, but not limited to literature, music, artistry, and logos containing artistic design (graphic design). Visual arts include such works as pictorial, graphic, and architectural works to name a few. Examples of such works are graphic design logos, photographs, fabric and jewelry designs, advertisements, artwork, paintings, drawings, posters, etc.

A copyright would extend an additional type of protection to an artistic design logo. As mentioned above, trademark protection only protects the design logo if used in interstate commerce in connection with the goods and services listed in either the trademark application or trademark registration. On the other hand, copyright protection is broader, it will protect the artistic design logo from being copied or used without consent regardless of whether it is being used to brand goods and services. Copyright infringement would occur if a third party uses, copies or exploits the original work without the owner's permission. The legal standard is whether the copied work is substantially similar to the original work.

The damages also differ based on trademark infringement or copyright infringement. Under Section 1117 of the Lanham Act monetary damages may be awarded to a claim of trademark infringement, false designation of origin, and willful trademark dilution cases. Possibly a plaintiff in a trademark litigation may receive a monetary reward based on damages sustained by the plaintiff, an accounting of the defendant's profits, reasonable attorney fees in exceptional cases (a defendant may also receive reasonable attorney fees if the defendant prevails), and recovery of the costs of the action (to the prevailing party). In trademark cases, courts have held that monetary damages are not necessary if injunctive relief is adequate.

A copyright infringer may be liable for actual damages and any additional profits of the infringer or for statutory damages. To receive statutory damages the owner of the copyright must have registered the work with the U.S. Copyright Office prior to infringement or within three months of publication of the work. 17 U.S.C. §504(c) permits statutory damages. This is a good option for cases where damages are difficult to prove. Under statutory damages, there is a range of $750 to $30,000 per infringed work, at the discretion of the court. However, if a plaintiff can show willful infringement, statutory damages could go as high as $150,000 per work.

Both trademark and copyright protection may be available to your artistic design logo. If you have questions regarding your company's design logo or if you have general trademark or copyright questions, please feel free to contact the firm for a courtesy consultation.

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