by Rob Marsh
Every few weeks we come across someone who needs more information about how to legally protect their logo design but isn’t sure what to do.
Making matters worse, when they ask what they should do in an online forum, the advice they get is often completely wrong. We recently read a question from a new business owner who wanted to protect his logo. The advice he got was to print out the logo, put it in a sealed envelope, mail it to himself, then keep the sealed envelope so he could dramatically open the envelope in the middle of a future court case and reveal that the logo was his!
That’s horrible advice.
And if that’s been your strategy so far, it won’t work.
How to legally protect your logo design
To protect your logo, you need a trademark or service mark (trademarks are generally used for products, while service marks are usually applied to services).
You should not copyright or patent a logo design. Patents are for inventions, copyrights are for artistic works like books, paintings, and architectural blueprints. Neither is appropriate for a logo used in commerce.
As soon as you have your logo, you can start using a small TM or SM symbol next to your logo everywhere you use your logo (most companies use the TM). This indicates that the logo design belongs exclusively to your business and that you intend to register a trademark in the future. Using the TM gives you some common law protections for your logo. There is no limit on how long you can use the TM or SM symbols before you have to register your trademark, and some small companies simply use this low-level of protection for their logo forever.
Others prefer to file for a registered trademark, which is sometimes called a circle R and looks like this: ®. This gives your logo design additional protections under the law. You can not use this symbol unless the US Patent and Trademark Office has granted you a registered trademark for your logo design.
Here’s how the USPTO says it:
“If you claim rights to use a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim of a “common-law” mark. No registration is necessary to use a “TM” or “SM” symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn’t give you all the rights and benefits of federal registration.You may only use the federal registration symbol “®” after the USPTO actually registers a mark, not while an application is pending. And it may only be used on or in connection with the goods/services listed in the federal trademark registration and while the registration is still alive (you may not continue to use it if you don’t maintain the registration or it expires). Although there are no specific requirements on where the symbol should be placed relative to the mark, most businesses use the symbol in the upper right corner of the mark.”
Because of the expense involved, many small businesses don’t take the last step to formally register their logo unless they are growing or have money to spare, but it’s a good idea if you can afford it. (In addition to attorney’s fees, the USPTO charges a non-refundable fee of several hundred dollars which is not returned if the trademark isn’t granted.)
Do you have a logo that needs a trademark? Start using the TM immediately then consider whether your budget and plans for the future justify registering a trademark for your logo design.