Logo and Copyright: Why You Should Consider Copyright Registration in Addition to Trademark Registration
Logo and Copyright: Why You Should Consider Copyright Registration in Addition to Trademark Registration
Most often, businesses elect to seek trademark registration under the federal Lanham Act, 15 U.S.C. § 1051, or under equivalent state law, to protect their logos and other trademarks. As discussed below, federal registration provides a number of valuable advantages over unregistered trademarks sometimes referred to as “common law marks.” So why additionally protect a logo with a copyright registration? The answers are found in the differences between what trademark law and copyright law protect as well as significant differences in the forms of relief available under each statute. If a logo meets the standard for copyright registration, dual protection under both statutes may make sense. The following tackles the issues and decision points for analyzing how to protect a logo and copyright law.
Advantages of Trademarking a Logo
Trademark law protects the source identifier – words, slogans, images, and even colors – of goods or services against others whose conduct may result in a likelihood of confusion in the marketplace. Many businesses invest in trademarking their core brands and logos because a federal trademark registration provides several advantages, including:
· Registering a trademark gives the owner the exclusive right to use the mark nationwide in connection with the goods or services listed in the registration. One can also obtain registrations in foreign countries using the domestic registration as a basis.
· Trademark registration puts others on notice that the trademarks are already in use. This is therefore a preventative measure against infringers.
· Registration gives constructive notice to the public of the registrant’s claim of ownership of the mark.
· Registration creates a legal presumption of ownership.
· Once the mark is registered with the United States Patent and Trademark Office, the mark owner may use the ® symbol in connection with the mark to alert others of its federal registration.
In addition, a federal registration may entitle the owner to recover statutory damages of up to $2M per counterfeit mark per types of goods and services sold as well as treble damages and attorney’s fees. 15 U.S.C. § 1117(b), (c). For more information regarding damages involving trademarks, see our posts, What are trademark counterfeiting damages under the Lanham Act? and What are trademark infringement damages under the Lanham Act?
Therefore, seeking a federal trademark registration for a logo, think Nike Swoosh symbol or Target’s bullseye symbol, often makes good business sense. For a further discussion of trademarking logos, see our blog post, Trademark Logos - What Are the Rules to Use Symbols for Trademarks?
Advantages of Copyrighting a Logo
Copyright protects the creative expression of an idea, not the idea itself. As the U.S. Supreme Court ruled in the famous Feist case, only a “spark” of creativity is required to obtain a copyright. However, not all logos may be substantive enough to qualify for copyright protection even under the low standard of Feist. To be copyrightable, a logo must also be sufficiently an independent creation under copyright law to qualify for protection. Seeking a copyright on the work of others is not likely to be successful.
Once a copyright registration is obtained, a copyright owner need only prove (1) ownership of a valid copyright registration and (2) copying of the original elements by the infringer to succeed on its copyright infringement claim. This often is much easier for a plaintiff to prove than the four elements required to prove a claim for trademark infringement: (1) ownership of a protectable trademark, (2) senior user, (3) likelihood of confusion caused by the infringement, and (4) damages.
For copyright infringement and assuming the plaintiff owns a valid copyright registration, the plaintiff may meet its burden of proof by simply showing that the infringer knocked off the logo without having to show a likelihood of confusion in the marketplace. Not having to prove that last element could be powerful and it also tends to simplify the litigation since there is no need for survey evidence, market studies, or expensive experts attempting to show a likelihood of confusion.
Another advantage to copyrighting a logo in addition to trademarking a logo lies in the forms of recovery available. Statutory damages under the Copyright Act provide a damage range of $750 to $30,000, with up to $150,000 if willful infringement is shown. The amount of damages does not require the copyright infringement plaintiff to prove its own damages or the infringer’s ill-gotten profits. In a standard trademark infringement case, a plaintiff typically needs to show (1) the defendant’s ill-gotten profits by establishing its revenue attributable to the infringement (and the defendant bears the burden of proving deductible expenses and other non-infringing factors) and/or (2) the plaintiff’s own actual damages. The availability of statutory damages eliminates intrusive discovery and streamlines a case for trial or summary judgment.
Unlike in trademark cases where an exceptional case must be shown to recover attorneys’ fees, a successful copyright infringement plaintiff typically recovers its attorney’s fees and costs. For more on copyright infringement damages, see our posts, What are copyright infringement damages? and What are copyright counterfeiting damages?
Final Thoughts on Logo and Copyright
The Trademark Act and Copyright Act require different elements of proof to show infringement. In some cases, proving copyright infringement may be easier for a plaintiff, particularly where the logo contains sufficient graphical material.
The Copyright Act provides for statutory damages, not available for a standard trademark infringement claim unless counterfeiting is involved. Statutory damages do not require a plaintiff to show harm and streamlines discovery.
Recovery of attorney’s fees under the Copyright Act is generally easier for a prevailing plaintiff than under the Lanham Act, but raises the risk that a successful defendant may recover fees if it prevails.
Dual protection of a logo gives a plaintiff two chances to prevail with a jury and may also allow for two potential recoveries of statutory damages.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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