Trademarks and logos are both ways that businesses can distinguish themselves from the competition. A copyright is legal protection for a tangible work of artistic expression. A trademark is legal protection for a business name, slogan, or another identifying item. A patent is legal protection for an idea or invention.

Trademark and Logos

Logos represent an overlapping area of intellectual property between a copyright and a trademark. Many businesses prevent their logo from use by others with both copyright and trademark protection. This is a gray area that involves closely examining the ins and outs of copyright and trademark law. Most people think of trademark when they think of logos. That's because a trademark is designed to provide legal protection for elements that distinguish a business in the marketplace. 

Distinguishing elements that can be trademarked include designs, slogans, and company names as well as logos. A trademark must be unique and related to the specific goods or services provided by the company. If your logo meets these requirements, it can be legally trademarked. The best trademarks, such as the Nike swoosh symbol, are instantly recognizable. When you begin using your logo on packaging, labels, and products, and it becomes associated with your business, it is legally a trademark and receives protection as such. Actually using the logo is what gives it trademark eligibility. 

Trademark protection is broader than copyright protection in several key ways. Trademark protection covers elements that cannot be copyrighted, including designs, fonts, colors, and names. However, while copyright protects against all abuse of copyrighted items, trademark only provides protection when use by another results in confusion in the marketplace. Two companies in substantially different markets can share a name: Delta Airlines and Delta Faucets, for example.

A work must display a minimum level of creativity to be eligible for copyright protection — a level that is not met by many logos. That's because the creative elements of a logo, such as its design, colors, or font treatments, do not fall under copyright protection. The exception is logos that are artistically ornate, such as a lavish original illustration. This can be confusing, since this type of logo would be eligible for both copyright and trademark protection.

Which Protection to Use/Fear

If you design a logo that is artistic enough to qualify for copyright protection, your intellectual property is twice protected. This prevents competition from copying or using your logo in any situation, including those that cause marketplace confusion. 

The type of protection you need depends on the type of use you are challenging in a specific instance. Trademark rights for a logo begin as soon as you start using the logo. However, this type of protection, known as common law trademark rights, is difficult to enforce and specific to your immediate geographic area. For this reason, you may want to register your trademark through the United States Patent and Trademark Office (USPTO). Only registered trademarks qualify for the following:

  • Federal coverage through the Anticybersquatting Consumer Protection Act, which allows you to sue those who register identical or similar domain names
  • The ability to request automatic confiscation by the U.S. Customs and Border Protection of imported goods that are counterfeit or copyright infringing 
  • Eligibility for international trademark protection
  • The ability to sue alleged infringers in federal court
  • National ownership of the trademark

In the United States, it's easier to defend a trademark than a copyright, especially because a trademark doesn't necessarily need to be registered to be protected and defended from infringement. However, the only way to defend one's trademark is by suing, which can often be very expensive. Also, because the scope of trademark protection is narrow, a similar mark is only considered infringing if it causes marketplace confusion. Copyright, on the other hand, protects against all types of copying beyond fair use

It's easy to avoid a trademark lawsuit from another company if your logo is similar to theirs as long as you don't fictitiously claim to have a relationship with that company. To avoid a copyright suit, however, it's important to be aware of issues regarding fair use. Do not copy an artistic logo; instead, treat it as you would a work of art, such as a painting or photograph.

If you need help with trademarks and logos, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.