Introduction- Brand Logos
Generally, logos and designs that are used as brand identities for representing businesses are protected as trademarks. As they are original artistic works that have an element of creativity, they are also protected as copyrights. Trademarks and copyrights are two different forms of intellectual properties and are protected by different laws; and the scope of protection under different laws is different too. In this article, the thin line between the protection afforded to brand logos and designs under the two regimes has been discussed. But discussing the same, it is important to first look at the meanings of trademark and copyright.
A copyright is a “cluster of several rights granted to the owners of specific creative works”. In a nutshell, a copyright could be explained as an exclusive legal right to do or authorize another person to use, reproduce and distribute copies of and / or make adaptations or translations of and / or perform or communicate in public certain kinds of creative works.
A trademark is a ” mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from that of another when used in trade”.
Overview- Brand Logo
A brand identity or a trademark represents the origin, quality and the goodwill attached to a business. It could be anything with the help of which consumers identify a business or a brand. The coverage of a brand identity or a trademark is broader than copyright in as much as anything with which a business or its commercial offerings could be associated would be considered a brand identity.
While every business entity aims for gaining recognition and put in ample amount of time, effort and creativity to design its business identities and logos that are attractive, not all logos might be unique or original. Brand identities could well represent businesses owing to their distinctiveness and association with their owners but may not have minimum standards of creativity or qualify to be original. For example, a logo may be based on a very basic shape, like Nike’s Swoosh, that has acquired recognition and is associated with a business group. However, the same might not qualify for copyright protection due to lack of artistic character. Similarly, the use of a specific colour or combination of colours could give rise to a strong brand identity, but it might not be copyrightable.
Only certain kinds of creative works are capable of copyright protection, artistic works (including brand logos or designs) being one such kind. If a brand logo has an element of creativity and is original, it will also attract copyright protection in addition to trademark protection.
Summarizing the above, the main requirement for a brand logo to be protected under the trademark law is that it should be distinctive and capable of representing a trade in commerce; whereas copyright law, on the other hand, requires that a logo is an original piece of art and has a creative element attached to it.
Conflict check procedure
In India, prior to registration of an artistic work that is also capable of being used as a trademark, the trademark registrar is approached for certification that there are no trademarks on record that resemble the copyrightable artistic work. Only once it is confirmed and certified by the trademark registrar that there are no same or similar trademarks on record, the artistic work copyright could be filed for registration. Similarly, a trademark is not registrable if it is in conflict with a copyrighted work.
While trademark and copyright laws in India give consideration to the conflicts that may arise under each other, it is noteworthy that as of now, there is no actual procedure either prescribed under the trademark law or followed by trademark authorities in India to scrutinize the copyright records while examining trademark applications.
Term of existence of copyrights and trademark rights
There is no limited term of existence or validity of protection for a right in a trademark. A registration is valid for a period of ten years and requires renewal every ten years post that. So, the life of a trademark right in a logo could be perpetual, if the owner is interested in maintaining it. However, copyright in a logo would last for only for sixty years (in India) from the year following the year of its author’s death.
Also, the term of copyright is different for different jurisdictions and in certain jurisdictions, different based on entities owning copyright. But throughout the world, it is well-settled that trademark rights can last for perpetuity.
It is worth mentioning that a representation or an identity of a brand is a commercial tool for any business, therefore, a trademark. The only requirements for an identity to qualify as a brand identity are that it should be capable of graphical representation, shouldn’t be generic or descriptive and should not conflict with prior trademarks. Not only does this allow a business owner to seek statutory protection of his identities of varied nature, but they are also protected as such in perpetuity.
If a brand logo has original creative and artistic characteristics, the same attracts copyright protection and could be registered as an artistic work; and in such event, remedies under copyright law could be sought for in cases of enforcement. Registration is of high evidentiary value in both, trademark and copyright enforcement actions.
An ideal strategy for any business owner, thus, would be to seek protection of their unique brand logos under both the laws and obtain statutory trademark rights as well as copyrights in relation to the same.
Want to read more about trademarks laws in India? Visit our page here- How Does The Trademark Renewal Process Work? Legal Updates.