As logos become more and more ubiquitous—and as competition gets stiffer and stiffer—it’s not only important for brands to differentiate themselves, but also to protect the designs associated with their brand experiences. A brand’s intellectual property rights may include copyrights, trademarks, trade dress, patents, and more, depending upon jurisdiction.
Originality is seldom the explicit client goal of a new graphic identity project, but stretching yourself to develop a graphic identity that doesn’t look like anything else may help legally protect the design in the marketplace.
Just like names and taglines, the law recognizes a company’s logo as its intellectual property. Of course, a designer wouldn’t intentionally create a logo that looked like an existing mark (especially in the same category or industry). However, so many logos have been developed in the last sixty years that finding common, universally understood shapes or cultural icons that haven’t already been used can be difficult.
Beginning your identity projects with research may make it harder to finish the work, but research must be included at some point in your design process. The ready availability of information and logo databases can help you find out whether you are getting close to a violation.
Graphic similarity is not enough to make a case for trademark infringement. While similar in composition, each mark in these paired sets represents an organization not in direct competition with the other.
The first step is creating a mark that’s completely yours, but that’s only the first step. The next step challenges you to think about how to apply that mark in ways that add up to a unique and protectable program, one that echoes the brand promise and speaks to the intended audience in a way that others have not.
In legal terms, protecting the overall look and feel of an identity program falls under trade dress. The placement of the mark, the color, the shape of product packaging: All of the things that create the overall look and feel of a brand in the marketplace could be a trade dress.
Trade dress is difficult to protect. For some types of trade dress, you need to prove that the consumer really believes that the trade dress is a source indicator for you—that your company is the source of that product or package. For example, the unique curved shape of the Coca-Cola bottle is protected as a trade dress. Only once a company proves that its package or program has achieved distinctiveness can it be protected as trade dress.
Owning an Aesthetic
Protecting the brand identity in a legal sense becomes even harder than identity programs, but attempting to “own” a meaningful space in the mind of your customer is every marketer’s objective. Being cognizant and proactive in projecting and protecting brand identity turf is worth the investment to keep a company sharp and competitors at bay.