INTA 2017: Logo Protection—Trademark v. Copyright
Protecting logos with copyright can be an option, but the intricacies of each jurisdiction require very different approaches, a panel session titled Using Copyright to Protect and Enforce Rights in Logos found yesterday.
While logos act as source identifiers and are therefore protected by trademark law, they can also be seen as works of visual art and be protected by copyright law.
But there are significant differences among jurisdictions, Noel M. Cook (Owen, Wickersham & Erickson, USA) noted.
To register a logo as copyright in the United States it needs to be “sufficiently creative,” for example in the use of coloring, fonts and shapes, said Catherine Rowland, Senior Advisor at the U.S. Copyright Office. To register for protection, the logo needs to be described as precisely as possible, she added.
Copyright law provides advantages to supplement logo protection when trademark law provides no relief, Vivien Tsang (The Sherwin-Williams Company, USA) noted. The advantage is that copyright protection is “universal” and independent of any products and services, Ms. Tsang added.
Copyright law can be a good tool for logo owners who have not registered their trademark, or have not registered it in connection with all potential products and services. Logo owners may also rely on copyright law to stop the use or registration of logos by third parties in countries where they do not own trademark rights, according to Ms. Tsang’s presentation.
For the registration of a logo in China, the responsible body does not consider originality as much as is the case in the United States, Joseph Simone (Simone Intellectual Property Services Asia Ltd, Hong Kong SAR, China) said. But registering copyright in China is costly because it requires a lot of paperwork, he noted.
Best practice is to submit full documentation including a declaration, an agreement with the original creator, evidence of prior use, as well as all notarized and legalized documents.
In Europe, copyright is complicated because there is only marginal harmonization of the rules, said Richard Gilbey (Gilbey Legal, France).
Furthermore, there are authors’ rights laws in addition to copyright laws, and these rights prevent, even in a business environment, huge amounts of money changing hands in France, Mr. Gilbey said. It is essential that the authors’ rights are assigned in writing to avoid disappointments at a later stage, he suggested.
Because of the lack of harmonization of the copyright laws in Europe, Mr. Gilbey suggested that registering for trademark protection might be the better option in some cases. If a logo is destined to be a commercial source-identifying sign and thus a key market identity tool, a trademark will remain the better route, he said.
