I’m not even sure which term applies. Trademark? Copyright? Something else?
Anyway, I’ve got a logo. Is it important to register it in some way? If so, how much will that cost me?
I think it’s a TM in this case. Copyright is yours automatically on written work, but I think you have to apply for a TM. More knowledgeable people will reply now.
A trademark is used to
Assuming you’re in the US, here’s where to go to get started: http://www.uspto.gov/web/trademarks/workflow/start.htm
Dude. That’s $325!
Suppose someone for some reason tried to register my logo for themselves. Would I have any legal basis for challenging it based on prior use or anything like that? Or would I be screwed?
IANAL
It’s my understanding you’d be screwed. You might, if they are in a radically different field, be allowed continued use of your name. OTTOMH McDonald’s has gotten older existing businesses with the name to shut down. OTTOMH Gene Simmons wisely trademarked the name Kiss and the distinctive font. He was able to stop other, older bands named Kiss from using that name because he owned the trademark.
First person to register wins. However, to maintain a trademark the firm must show that it provides a real product and defends the trademark status. You can’t squat on a trademark the way you can on a URL.
The real question that you have to ask is why anyone would want to use your logo. Most small business don’t find it worthwhile to spend the money on trademarks because realistically nobody else would care. If you are in a special position where somebody would care and would try to take your logo, then the expense is reasonable.
Did you search here first?
Logo/Picture Search to see if your potential TM logo is different enough to even qualify for status. Someone may already have a desgin like yours
Actually the first person to register a TM doesn’t necessarily win
Yeah, I think the chances are miniscule. That’s why I balk at spending any substantial amount of money on a trademark.
Perhaps if the thing takes off in any substantial way, I’ll reconsider trademarking.
Thanks for the cite.
Still it’s a lot cheaper to pay the $325.00 and confirm you have a TM then hire a lawyer later on to fight off someone trying to use your common law one.
Anyone remember the NBC case where NBC came up with a stylized “N” and it was virtually the same logo as one used by the PBS system in Nebraska
Keep in mind that the $325 fee is only the government’s fee. While you can theoretically register a trademark without a lawyer, doing so might be pointless. If you screw up, you’ll have paid $325 for nothing.
The purpose of a trademark is to protect your brand from others who may try to benefit by imitating you. In my opinion, it’s not worth registering if the cost of registration is more than 1% of the amount you spend marketing your logo. (i.e. if you aren’t spending at least $30,000 on marketing, you’ve got better uses of your money than protecting your brand).
And some final trivia: a TM applies to products when have not registered the mark; if your company is service-based, you’ll have an SM instead. If you register it, you use the ® either way.
Assuming you’re in the U.S., and depending on what state you’re in, there’s two options for registration - state based and federal based.
But first things first. Do you need to get your logo registered? Not really. There’s nothing that says you have to. But if you don’t then someone can operate their business using a similar or identical logo, and your customers might be mislead into thinking that the new company is part of your company, and there won’t be much, short of a lawsuit, that you can do about it.
On the other hand, if you do go ahead and register your logo, then you can stop anyone else from using that logo in a business that is related or similar to your business. The simple fact of your registration will usually be enough to make the new business change their logo, or withdraw entirely - they won’t bother to fight it because you have a prima facie right that is very hard to contest.
Edit - oh yeah - it’s a trademark issue.
Australian intellectual property lawyer and trade mark attorney here
Trust me, we make much more money wehen we have to go to court to fight for our client’s unregistered marks. Register it already.
What’s an SM?
Oh wow, thanks for that. Yes indeed, what I’ve got is a service mark, not a trade mark.
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You should consult an actual trademark lawyer to find out if you really need to register and what you need to register for.
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A logo can be subject to both copyright law and trademark law. If it’s an original, creative work, then you can prevent anyone from using it in a manner that infringes your rights under the Copyright Act. If you are using it as an identifier of the source of goods and services then you can prevent anyone from using it in a manner that infringes your rights under state and federal trademark/consumer protection/unfair business practices laws.
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Your rights in a trademark derive from “use in commerce.” In order to register, you have to prove that you have already accumulated (or that you intend to accumulate) such rights through use in commerce.
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Your trademark rights are limited to the geographical area in which you offer your goods or services and in the specific line of business you are in. If you try to stop someone from using your mark, you have to show, among other things, that the other person (1) is using a mark that is confusingly similar to yours, (2) in your geographic area, (3) in your line of business. A lot of local businesses don’t bother to register their marks, because there’s no point, unless a direct competitor sets up essentially next door with the same name or logo.
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Whether or not you register your mark, you can stop someone from using a similar mark in a manner that causes customer confusion. In both cases, you might have to take private legal action. There’s no “trademark police” that will step in and do it for you.
fuzzy on details, but I heard some company made a product called the NetBook in the late 90s, then went out of business. When Asus and HP and others started making the notebook/pda hybrids, they did not call then NetBook so as not to infringe upon rights. However, other people called then NetBooks (review sites, forums, etc.) and apparently the company moved to sue, etc.
If it’s been 10ish years since the company produced the product, do they still have rights to it? Do they have a use in commerce for the name at that point?
in re: to the OP’s intent, I recently went to Vista Print and used their logo design tool for a tv show I’m writing/producing. (It is VERY cool)
Anyhow, they charge me like $25 or something to download it, but I can use it for anything on their site for free.
How do I know, and how does their site know, that the logo we design together doesn’t accidentally infringe an existing mark of some sort? Is it my responsibility to go to uspto.gov and other sites and compare the mark before I spend money getting it printed on products?
If I hand out thousands of business cards and hundreds of promotional items, and a company on whom I infringe notices the mark, I assume the most likely response is just to tell me to stop, unless I continue after that point, right?
acsenray, you point out in point 4 that business don’t register because they’re no point. One point might be so that it’s easy for other people to make sure they aren’t accidentally infringing you. It would suck for two people to accidentally be using a very, very similar mark because neither registered. Maybe both checked, but didn’t bother to register. Just wondering.
You don’t have rights in a mark that you don’t use in commerce. If the original trademark holder sued, then the defendants could argue “abandonment.” Under federal law, if you haven’t used a mark for three years, it’s presumed abandoned.
But a lot of companies tend to take the conservative route and avoid any possible litigation, so even if the original company had no enforceable rights in the term, they might still choose to avoid it.