The essential role of your brand logo is to help customers identify your company as the manufacturer or source of a product. So, the presence of the right logo is a critical trust signal to consumers that they’re buying the real thing.
But one of the unique challenges of owning an eCommerce brand as opposed to traditional retail, is that nearly all of your assets are classified as intellectual property. Which means they’re widely available on the internet…
Which means your brand identity is easy to steal and imitate.
Without being able to physically touch a product before purchase, or the reassurance of walking into a brick-and-mortar store, online customers rely on your brand assets, including your logo, to make informed purchase decisions. Unfortunately, because it’s easy to exploit the intellectual property of eCommerce brands, counterfeiting and copycatting is rampant online. And when customers believe their buying one thing, then receive another, it’s your brand that often suffers the consequences of a bad reputation. So, having the tools to protect your unique brand identity, especially your logo, is one of the most important steps you can take to defend your brand.
Legally Protecting Your Logo
There are 3 legal tools businesses can use to protect their brands from copycats, counterfeiters, and other forms of infringement: patenting, copyrighting, and trademarking.
How to patent your logo
You don’t. Patents are a class of legal protection for inventions and innovations. Your products may be eligible for patent protection, but your logo isn’t.
You’ll want to look into trademarking and/or copywriting your logo
Copyright vs Trademark
What is a copyright
A copyright and a trademark are 2 different things, but they overlap. Understanding whether your logo needs one or both is the first step.
Generally, copyright law exists to protect original works of art like novels, movies, songs, photography, and paintings. It’s why you can’t upload the latest blockbuster film to YouTube or copy and paste the current New York Times Bestseller to your blog. It’s also why many bloggers get in trouble posting pictures they don’t have a license to use.
Copyright protects the author by giving them sole permission to reproduce, publish, and sell copies of their work. Copyright also allows them to create “derivative” works, like a translated version of a novel, or the adaptation of a book into a movie script.
Logos can be protecting by copyright as a work of creative expression. But the key word here is expression.
Copyright has several important limitations.
First, copyright can only protect the expression of an idea, not the idea itself. So while J.K. Rowling has a copyright to Harry Potter, she doesn’t have a copyright to a child wizard, or a school of magic. Technically, another author could write a series about a young wizard, but the expression would have to be distinct enough from the Harry Potter stories that it doesn’t cross the line into copyright infringement.
Here’s another example: Buffy the Vampire Slayer and Twilight are both stories that include teenagers and vampires, but the expression of those themes is distinct enough that there’s no copyright issue.
What this means for your logo is that what’s protected is the unique design. Another company could design a logo with the same symbolic meaning or themes as yours, as long as the design is distinct.
Second, expression does not cover your brand name, color, or font. But these assets can be trademarked (which we’ll cover below).
Third, copyrighted works are still subject to fair use. That means if a news organization runs a segment about your category and they display your logo on screen, their use of the logo is protected by fair use. Commentary and criticism are covered, so there will be cases where you can’t stop individuals from using your logo, even if you didn’t grant your permission.
And finally, copyright has a shelf-life. For most artistic work, copyright lasts 70 years after the author’s death, at which point the work enters the public domain. Copyright used to expire 50 years after the author’s death but was extended to 70 years following the lobbying of Disney. They are still fighting to extend copyright terms, so these rules might change. Between 2031 and 2035 several iconic characters will become public domain under these laws, including Superman, Batman, and Bugs Bunny. For copyright applied to corporations, it lasts 95-120 years from the date of publication.
Does copyright apply to logos?
If your logo qualifies, it’s another tool at your disposal to protect your brand identity. However, while it’s possible to copyright a logo, it’s very difficult. To qualify, a logo has to “reach a requisite level of creativity.” And because copyright excludes your name, colors, and font, this is a high threshold to meet.
What a “level of creativity” means, is that your logo must be able to stand as a separate work of art apart from its use as an identifying mark for your business. Is this subjective? Sure. And you’re welcome to apply for a registered copyright to test the waters but be aware of the risks because the fees are nonrefundable. You’ll want to take extra care designing a logo that’s utterly unique.
One more caveat to copyrighting is that if you hire a designer to create your logo, the original copyright is theirs. When it comes to a work of creative expression, copyright is automatically applied to its author, which in this case is the designer.
You’ll need the designer to transfer the copyright to you via a written contract, or specific you’ll share rights so the designer can use the logo as authoritative reference. Exchanging payment for the logo does not automatically transfer the copyright. So bottom line: is attaining a copyright worth it? You’ll need a registered copyright to have the legal standing to sue someone for infringement, so if you can attain one, yes it’s worth it. But, it’s not absolutely necessary either. Trademarking will also give you powerful brand protection.
What is a trademark?
While copyright is largely intended to protect creative works, trademarking is intended for the business world. The purpose of trademarking is to prevent other companies from creating confusion in the marketplace by copying or imitating another brand. In essence, it’s a way to protect consumers and ensure that they know who they are buying a product from.
A brand can therefore trademark any asset that identifies them in their market, including:
- Your brand name
- Your brand’s tagline or slogans
- Your brand’s logo
- Your brand’s colors
- Your brand’s typography
So why would you ever consider a copyright, if a trademark offers greater protection of your brand assets? Because like copyrights, trademarking also comes with limitations.
Just as expression was the linchpin in copyright, confusion is the linchpin of trademarking. Essentially, a trademark prevents another brand selling the same products/services as you and occupying the same market from copying your visual assets.
What this means is that it does not protect you from businesses outside your category from using similar assets to identify their brand. Since you’re not directly competing, consumers likely won’t be confused over the source of the product they’re buying. In this case, however, copyright infringement can apply.
Tiffany and Co., the jewelry brand, have a trademark on their iconic teal blue, which prevents other jewelry brands from using that shade. But it doesn’t stop brands like David’s Tea from using a very similar color.
There are a few other trademarking rules to be aware of.
You cannot trademark a generic name. If you were an apple farmer, you can’t trademark “Apple Farm” because those are descriptive words that indicate what you sell. That sort of trademark would mean none of your competitors could tell consumers they sell “apples” which would be anti-competitive.
In one famous court case between Coca-Cola and Pepsi, Coke tried to sue Pepsi for use of the word “Cola.” Coke lost because the judge found that the word “cola” is a type of product, and therefore couldn’t be trademarked. “Coke” on the other hand because it’s a nickname associated with a single brand, is trademarked.
The exception is when the word used is not directly related to the products you’re selling. This is why Apple can trademark their brand name, as they sell consumer technology.
But the generic rule works both ways. There are plenty of brand names that have become genericized over time and lost legal protection. When a brand name becomes the default word for a type of product, and the association with a specific brand is gone, trademarks are lost.
Escalator began its life as a brand name, but now it’s the noun we use for all moving staircases, regardless of the manufacturer’s brand. Other former trademarks that are now generic words: aspirin, dry ice, kerosene, videotape, and even heroin.
Trademarks, unlike copyright, do not come with a defined expiration date (assuming Disney doesn’t get their way), as long as you continue to use those trademarks. If a trademark lapses from public use, you’ll have to apply to renew the trademark every 10 years. But as long as they remain active, your trademark stands.
Types of trademarks
There are 3 types of trademarks:
Registered is the strongest type of trademark, and it simply means you’ve gone through the trademarking process with the proper authority in your country and have been granted the legal status of registered trademark.
An unregistered trademark is a trademark you’re claiming on the basis that your business actively uses these assets to identify your products, and consumers are familiar with those marks. If, however, another brand challenges you legally, you’ll need to prove you claimed the trademark first. An unregistered trademark is better than nothing, but it’s far from bulletproof.
An unregistered service mark applies to businesses that sell services rather than physical goods. For example, a law firm might have this type of trademark.
One word of caution here: if you are using an unregistered trademark but have applied for registration, you cannot use the registered trademark sign, the R in the circle, until that registration is cleared.
Now that we have all of that cleared up, you’re ready to file your applications.
How to copyright your logo
If you live outside of the USA, this process may vary. Make sure to contact the local authority that oversees your country’s equivalent laws.
Step 1. Access the Copyright Office’s Database.
Before you fill out an application, make sure you aren’t currently infringing on anyone else’s copyright. Luckily, the Copyright Office’s database is public and searchable. Do a thorough check for similar logo designs.
In Canada: https://www.ic.gc.ca/app/opic-cipo/cpyrghts/dsplySrch.do?lang=eng
Step 2. Fill out the application
You can access the US application forms here: https://www.copyright.gov/registration/
Canadian application forms can be found here: http://www.ic.gc.ca/eic/site/cipointernet-Internetopic.nsf/eng/wr03915.html
It’s cheaper to submit your application online than it is via paper, although you will have to physically mail a copy of your logo later in the process anyway. Logos are covered under the Visual Arts category.
The fees are nonrefundable. In the US it’s $39 to file online, and $65 in paper form.
In Canada it’s $50 (CDN) to file online, and $65 via mail.
Step 3. Wait.
Once you’ve filed your application, it’s a waiting game for the response. You can appeal a rejected application, but in the US it costs $250 to initiate the process.
How to trademark your logo
If you live outside of the USA, this process may vary. Make sure to contact the local authority that oversees your country’s equivalent laws.
Step 1. Research existing trademarks
Access the USPTO database (in the US) and search for existing trademarks that may conflict with your own: https://www.uspto.gov/trademarks/search
In Canada, the trademark database can be found here: https://www.ic.gc.ca/app/opic-cipo/trdmrks/srch/home
Step 2. File your application
In the US, the application can be submitted via the TEAS, the Trademark Electronic Application System at: https://www.uspto.gov/trademarks/apply
The fee is $250 per class of goods or services, and separate marks will require individual applications and fees to process as well.
And in Canada, via https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr01369.html
The fee is $336.60 (CDN) online for the first class of goods or services, and an additional $102 for each additional class of goods or service.
This application will require a detailed description of your logo and what it represents.
Step 3. Wait!
Trademarks take about 4 months to process, although you will be able to check the status of your application online.
Optional Step 4. Set up a “trademark watch”
This is a type of service that helps you monitor the Trademark Database for anyone attempting to file a trademark that’s similar to yours. Although, many offices will do this check at the time of newly submitted applications and reject accordingly. There are also other services available that will monitor the market for potentially confusing competitors, or outright counterfeiters and copycats.
Before you go…
Although copyrights and trademarks are a legal tool, infringement is not a crime. Police departments don’t have departments staffed by officers combing the net for violators and knocking down their doors.
In other words, they’re tools that are only as good as your willingness to police and defend your brand identity yourself (or with the assistance of a service). You’ll have to calculate whether the time, energy, and cost associated with applying and then enforcing copyrights and trademarks is worth it to you.
Remember, there’s no use in registering a trademark if you’re going to let it lapse or go unforced. If you decide to sue the 10th person who infringes on your trademark, you’re not going to have a strong argument in court.
Ultimately, the point is that creating a brand comes with responsibility. If a brand is going to be meaningful to its customers, you have to own it, and that includes protecting it.
After all, a protected brand means a trusted brand.