Copyright protection may provide an alternate path to protecting a logo or design mark. Unlike trademark law, copyright law does not extend to protection to a word or phrase, such as a business name, but rather, it covers original works of art, including logos, infographics, and designs.

In order to qualify for copyright protection, a work must meet three requirements:

• Be “original”
• Be “fixed” in a tangible medium of expression
• Have a minimum level of creativity

Copyright v. Trademark Protection

Both trademark and copyright law may be used to protect different aspects of the same logo. Copyright law protects the artistic aspects of a design and prevents unauthorized use of a substantially similar image in all forms (except those covered by fair use). There is no inquiry about whether the goods and services at issue are related or competitive. In comparison, under trademark law, a determination of infringement is based not only the similarity of the marks, but also the relatedness of the goods and services, and multiple other factors. A trademark owner can only prevent third parties from using a confusingly similar mark on their goods or services if the goods/services are related, even if the mark is an original work.

Benefits of Copyright Registration

If you are unable to obtain trademark protection for your logo or other design, filing for copyright protection may be a viable option. Significantly, copyright applications are not subject to the same levels of scrutiny and the application process is not as complicated or as long as it is for trademarks. As a result, obtaining a copyright registration is far less expensive and takes far less time to obtain.

However, unlike trademarks, where common law (unregistered) rights may be the basis for a trademark owner to sue for trademark infringement, a copyright registration is required before one can sue for copyright infringement. Also, unless the copyright registration was issued prior to the infringement occurring (or within 3 months of publication of the copyrighted work, if even published), a copyright registrant cannot obtain statutory damages or an award of attorneys’ fees. Without registration, only an award of actual damages and profits may be available, which can be difficult to prove.

Copyright registrations have many benefits:

• Registrations constitute prima facie evidence that a copyright is valid and that all the facts stated in the certificate of registration are true. This means that the burden shifts to the alleged infringer to show that an issued copyright registration is invalid.
• Registration provides notice of copyright ownership, which makes it harder for potential infringers to argue that they infringed “innocently.”
• Registration makes it easier for you to transfer or license rights in a logo or image.
• It is possible to record a copyright registration with U.S. Customs to protect against the importation of infringing copies into the U.S.

Please consider every option and opportunity to maximize the protection and value of your intellectual property. If you have created a logo, image, infographic, or other work of art, contact us to discuss whether copyright protection may be advantageous.