Trademarking a logo: when is it necessary?
Trademarks and the trademark process don't always make sense. Part of the confusion comes from the overlap with copyright. Regardless of where the confusion stems from, stepping on a trademark can be costly.
Business owners know they need a lot of different tools and knowledge to succeed. Business, after all, is about outdoing and out-thinking the competition.
When it comes to the protections and benefits of trademarking a logo, many businesses make bad calls.
We've put together the following information to help guide you through the background of trademarks, and the knowledge needed to decide if a trademarked logo is necessary for your business.
The trademark process
The series of steps that must be followed in the trademark process has grown through a mixture of internal and external forces. Trademarks may be localized to a state, region, national, or international court in their registration and protection.
We'll go into the history of the trademark as a legal precedent and a business practice. This will provide background on how they function now and why they have the importance they do.
Here's a quick list of what we'll need to go over.
- What is a Trademark?
- How a Trademark Protects
- When To Trademark
In each section, we'll provide some context for how trademarks function, as well as the process, to establish a trademark. By the end, you should be well-armed to make a confident decision on your businesses need for trademarking a logo.
What is a trademark?
Some of the earliest trademarks came in the form of potters marks. These marks identified the shop or artisan that created a particular piece of pottery. Found in the ancient world in Egypt, Greece, and across the Roman Empire, potters marks give a strong sense of ownership.
Even today, owning a vase made by a particular craftsman produced in a particular period can be the cornerstone of an art fortune. This shows the power of an identifying mark to trade crafts and services.
Later, merchants marks would emerge around the 10th century. These marks helped to prevent actual piracy, in that they showed who owned a good in the event it became stolen. Livestock brands work in much the same way to prevent theft of a good that was otherwise difficult to distinguish or prove a chain of ownership for.
Manufacture and goods mark acts began cropping up in Europe as early as 1857 with modern versions coming about in the early 20th century. In England, as well as the US, the marks began to prevent counterfeiting, misuse, and theft.
History shaped trademarks to be a persistent and easily recognizable form of security against various types of theft. That theft may be of physical property, claims of origination, skill or quality, and finally of a business providing those goods and services.
The modern use of the trademark serves these purposes, but the trademark process has gotten more difficult. Registration needs to be done with an intent to use, and frequent renewals are common.
How a trademark protects
Simply put, a trademark protects brand identity. Trademarks create a sense of public and consumer trust by stamping a product with a seal of quality. That quality will differ from one trademark to the next, but the consumer knows (or at least wants to know) what they are getting when buying those brands.
To protect against similar counterfeits, trademark protections take into account concepts of similarity. When a logo or trademarked image appears too similar to another, action can be taken. The original trademark holder has grounds to declare their brand is being infringed and consumer trust eroded.
Instead of protecting goods from direct, physical theft, as the merchant marks of old did, the trademark process works to prevent intellectual theft. Especially when it comes to duplication of goods that are similar. Modern trademarks now seem to be protecting against piracy.
Now you know the reason we use the same word to describe both things.
Because a logo is often designed by someone outside of the company, or not designed by those holding the incorporation documents, the trademark can't belong to the designer. A trademark belongs to the entity that utilizes it.
A business that doesn't use a trademark for long enough will lose rights to it. This provides pressure to businesses to keep their logos in the public eye, but it also helps to refresh old designs that may belong to long-dead businesses.
Without usage as a stipulation, eventually everything would be a trademark of some entity, there just can't be that many designs that far from each other.
One of the key things to remember about the trademark process is that it begins before registration. As soon as a logo begins being used on a product, whether it has been registered or not, it has a common law weight behind it.
This provides a benefit in getting a logo field-tested before dedicating time and money to the registration process. A negative is that other companies could snap up your logo and register before you.
However, a cease and desist from using a logo too close to another businesses' trademark can be easy to fix. Though the registration process has a check system for not allowing logos which bear too much resemblance to another, so registration may skip any headaches on this front.
Even though de-facto common law protections spring into action when you start using a logo, the trademark process still adds benefits and protections, at a price.
Benefits include wider geographic protection. Instead of being protected in a single territory or state, the country as a whole recognizes the protections. When looking to make a trademark international, national recognition is an obvious necessity.
Online protections have more recently become an important reason to go through a registration process for a logo trademark. With so many people ready to buy up similar website names, trademark law has grown to encompass protection against pretender web domains as well.
The largest protection, of course, revolves around legal rights. These establish how to fight against trademark infringement. They also inform courts how to resolve conflict regarding ownership of a trademark.
The protections provided by a trademark won't hold up if the trademark itself doesn't hold up. Paradoxically, the biggest benefit of having a trademark is that trademarks have a rigorous and set way of protecting and challenging their authenticity.
To be approved, a logo may not be too similar to other logos already in use. Unless the logo represents a vastly different type of product so that no confusion could exist between what company was making the product.
Logos must also refrain from being offensive. While shocking people may be a solid advertising strategy, deliberately offensive branding won't be tolerated in most modern markets anyway, so the trademark process is really just helping a future blunder.
Logos that are intentionally misleading will also not be trademark registerable. A coffee cup logo for a pizza company would likely be rejected. Again, this seems to help a business more than harm, as confusing consumers won't help the bottom line.
When to trademark
Now that you have the basics of what a trademark does and why they exist, you can figure out if you need to register your logo.
Given that the trademark process costs money and time, that decision has some weight to it. There are clear benefits to having a trademark, but those benefits offer diminishing returns when put up against day to day business realities.
First, the cost of a trademark registration can be relatively cheap, if you file it yourself. Hiring legal counsel to submit for you will be more expensive, but also provide overall stronger protection and likely to go smoother. Registration processes can take upwards of 10 months to complete.
Once a logo gets trademarked, variations and changes to the logo coming from your business will take time and money to change and re-register. This also can lead to a weakening of your own trademark.
You have to continue to use the logo to retain the trademark. If the business doesn't succeed, the name changes or any other factor makes using the logo unviable, the registration time and money is gone.
Getting a logo registered should be a business decision that promotes growth and limits competition. This means making the decision when the business is either viable enough to continue to grow or in a tight enough market that every advantage counts, especially early on.
When dealing with a business with low competition in a new area, putting off registering a logo is probably a better choice.
Getting started in the digital markets of the modern world can be tricky. That is why we go out of our way to provide helpful knowledge about emerging and established trends.