by Aidan Murray

(with a little help from Chris McHattie)

Creating a logo for a brand is not as easy as simply drawing up “whatever design” pops into your head or by hiring a creative team to develop a unique logo. Even if the logo is “original” to you and you’re certain it is “unique,” a trademark search on, inter alia, the United States Patent and Trademark Office (the “USPTO”) trademark database may reveal otherwise.

The USPTO trademark database contains all registered and applied for trademarks, whether those trademarks are “word marks” or “design marks.” A registered word mark protects words, letters, and/or numbers. A design mark, on the other hand, protects a particular font, design, style, color and/or “fanciful creation.” Brand logos, therefore, are registered as design marks.

If you begin selling products bearing your logo without conducting a proper trademark search, you face the risk of being sued by a company who believes your logo is similar to their preexisting logo. To the same end, registering your logo with the USPTO helps protect your logo both from a charge of infringement and from being copied by others. As such, a trademark search should be undertaken when developing a distinctive logo, both to avoid infringing the rights of others and to have a logo that is protectable through federal registration.

If you do attempt to register your logo, an application to register your logo is filed with the USPTO and then “examined” by a US Trademark Examining Attorney. If your logo is considered too similar to a logo that has already been registered with the USPTO, the Trademark Examining Attorney may refuse to register your logo on the basis that it is likely to be confused with a prior registration.

With respect to Registration however, the USPTO is not perfect.

On occasion (and more often than one might think), the USPTO will register logos that bear striking similarities to logos that have already been registered. At first glance, this may seem like a wonderful thing for the owner of this newly registered logo as they may believe they “got lucky” because they were able to get their logo registered. However, this is far from an ideal situation – especially when similar logos are used in connection with similar goods and/or services. The purpose of a logo is to enable the public to differentiate between brands. A study conducted by signs.com found that the public has a hard time even remembering the logos of well-known brands such as Apple    and Walmart   .[1] If the Apple logo is not being remembered correctly, then it seems likely that a consumer will mix-up lesser known logos that are similar to one another. Therefore, a comprehensive search of the USPTO trademark database to ensure that there are no arguably similar logos already in use is both vital to protecting your brand and making the logo distinctive; i.e. valuable.

Consider, for example, the following logos:

The Target logo (U.S Registration No. 4,035,774) used in connection with, most relevantly, “ear phones” and “laptop carrying cases.”

and;

The Beats by Dre logo (U.S Registration No. 5,355,341) used in connection with, most relevantly, “protective cases for speakers; plug adaptors; chargers for use with headphones and speakers; carrying cases for headphones and portable speakers; computer software, namely, software for updating wireless speakers and headphones.”

Both logos share the same color scheme, are used in connection with similar goods, and resemble a bullseye. Taken at face value, the logos are not incredibly distinct from one another.

Nevertheless, logos can be similarly themed and still be distinctive. NFL logos are a particularly illustrative example:

Compare the Houston Texans’s registered bull’s head logo (U.S Registration No. 2,811,006):

with the Buffalo Bills’s registered buffalo logo (U.S Registration No. 2,571,410):

and the New England Patriots’s registered minuteman logo (U.S Registration No. 2,755,546):

All three NFL logos share a similar design and color scheme. Nevertheless, each mark retains strong and distinctive elements that allow the public to differentiate them. The Houston Texans’s logo is the head of a bull, the Buffalo Bills’s logo is the entire body of a buffalo, and the New England Patriots’s logo is the head of a man with what looks like horns.

Consequently, when developing a logo for your brand it is important to ensure that your logo is clear from a trademark perspective, is “distinctive” and is not likely to be confused with pre-existing logos used in connection with similar goods/services. If the public cannot correctly remember the logos of the most famous brands on the market, they will have a hard time distinguishing among a sea of similar and lesser known logos. That’s not to say that you cannot draw inspiration from pre-existing logos, as the NFL logos referenced above make abundantly clear, but it is vital that your logo retains some sort of distinct element that sets it apart from the crowd.

[1] See https://www.signs.com/branded-in-memory/.

 

If you’re interensted in learning more about protecting your logo or clearing your logo with a Trademark search, please contact us.