It is truly enraging to find one’s work getting ripped off, be it an article, or an advertisement, a logo design or even a particular type of font. Once an artist has put in his hard work into something, he would never like it if someone else ‘borrowed’ his idea, at least, without credit. Therefore, in today’s cut throat business of graphic design where every product and every brand needs a logo design to get noticed, what are the few things that can ensure your work to remain yours? Let’s discuss.

• What Is A Trademark?

To find out the ways to protect your designs through trademark, first we need to clarify what it actually is. The legal means that a brand uses to protect its designs from getting re-used by any other brand, in a way that would cause confusion in the minds of the consumers regarding their product, and diminish the power of their design, and affect the distinctiveness of their brand, is called a trademark.

• Don’t Confuse Copyright with Trademark!

Sometimes people get Trademarks mixed with the term copyright, although that’s a different law which implies different boundaries. The term copyright means that you hold the rights to make copies of your design and it is also punishable by law to go against the terms of copyright. This copyright law and its generalities are there to ensure that artists are the only ones who can get profited by their work and control their reputations.

The subtle differences between the two terms are all there is to them. For instance, you don’t need to apply for copyright, you automatically get it when you create something, but to get your design trademarked to your particular brand you need to apply for it. The terms of use for trademarks also get expired every ten years and companies need to get it renewed, and they are also not universal, you need to apply for it in every country you want it registered. Copyright, however, is universal, and it expires 70 years after the death of the creator or the artist, after which it becomes the public property.

• Which Elements of Design can be Trademarked?

It’s a brand’s pride and joy to get recognized for whatever promotional efforts they put in; whether it’s a logo design, or a font, or any other part of designing that makes the brand famous worldwide. But the constant danger of losing your work to some other company or the risk of getting confused for any other brand is a huge threat that every famous logo design faces.

To reduce just such kinds of threats, a designer gets his design trademarked and registered as selective to only a particular brand so that it does not get lost or copied in the myriads of designs that come out every day. First and foremost, every brand must get its logo copyrights so that no other brand can use any part of it. Then separate elements should be trademarked for instant recognition as belonging to that particular product that even if the design gets ripped off, people will automatically know where it really came from. For example, using a certain type of font, or a particular color or such an image that would get associated with the brand forever, is what typically works.

Here are different aspects of branding that can get trademarked for instant recognition:

1. A Visually Distinctive Color:

Color is, perhaps, the strongest feature of any branding strategy. When a designer creates a brand image, he uses a certain color that becomes the part and parcel of the brand identity in the minds of the customers. A valid question may be asked here that what would happen if all the colors and shades of the world were trademarked. There are more businesses then there are colors in the universe and the international markets would continue to grow. So where do you draw the line between what colors can be trademarked by certain companies and what would remain available for free use by all? Two famous brands which have acquired trademarks for their brand colors are as follows:

UPS has gotten trademarked for their color brown in the competitive industry and now only their product can be seen in brown because it has earned its association with it over the years.

T-MOBILE has gotten the color magenta trademarked among their trade competitors and this makes their style unique with the bright color.

2. The Unique Symbol for a Logo:

It is no mean feat to create a logo that does everything you want it to do, from delivering the product essence to company motto while projecting style and finesse. But the companies who have done it deserve a mention, because I found some logo symbols that were copied by others; yet, every time we look at them, we know where they originated from.

Macy’s has a logo that is not only well known but its star has been copied by various brands, like Heineken, but where one is a retail business, the other is in food and beverages.

Similarly, the most famous Apple logo with one bite was not an original idea, but the music company that had the original green apple gave them permission to use as long as they did not merge fields with them, so everybody could co-exist.

3. The Dilemma of Typefaces:

Typefaces are one of the subtlest ways of getting recognition in a world where you see them everywhere. Because they are the same fonts everywhere; they run an even higher risk of appearing similar to any other brand than the other aspects of a logo. It’s bad enough that you cannot get your fonts copyrighted, but what can make it better is making it synonymous with your brand.

McDonald’s font is probably the easiest to recognize as it uses Comic Sans type. The way they have used it for their tagline ‘I’m lovin’ it’ is now an integral part of their overall image. One cannot picture a McDonald’s sign without these words, and if it gets copied, people will always know where it came from. Other brands that have used this font just as successfully are Walt Disney Motion Pictures, Twitter, tumblr, Nike, and many others, but each of them have used it in a unique way with different colors so now even if the font is the same, it never appears to be a rip off.

Target is using Helvetica which is, perhaps, the most overused font when it comes to logo design, but still everybody uses it because it is the typeface that we all love to hate. Even though it has been labeled as boring and neutral, it keeps appearing in famous logos, such as, the American Airlines, Staples, Lufthansa, Nestle, Toyota, and Microsoft; you name it and we got it. But each brand uses this font in a distinctive style, either touching it up with their brand colors or attaching it with their logo image in such a way that the same font appears to be different in every image.

• Trademarks: Useless and a waste of Money!

We all agree to the fact that keeping our artistic and intellectual property safe is important, and it’s only fair that the designer be recognized for his efforts and a successful implementation of a design; but it so happens that even acquiring the trademark is sometimes not enough because of the copied versions that become extensively available in the local or international markets. Many famous brands have been a victim of product plagiarism, logo theft, font plagiarism, and unacknowledged use of any trademarked element of design. See the following images. For example:

Images: ChinaWhisper

In economies like China, there is just no surety that your product would remain original and licensed to you only. No matter how many countries you get registered in, and for how long, the copied products are going to be widely used with slight modifications in appearance.

• Why Are Big Brands Obsessed With Trademarks?

On one hand, there are companies around the world who shamelessly counterfeit the products of popular brands; on the other, we have some weird instances where famous brands are going overboard with their branding strategies.

› Sealtight vs. Sealtite: Who Owns The Sound?

The 16-year old lawsuit between two screw manufacturing companies B&B Hardware Inc., a Southern California establishment selling leak-proof bolts and screws, under the brand name Sealtight, versus a Texas company selling construction screws under the name Sealtite Building Fasteners. Where one does business in the high-tech environments like aerospace and medical industries, the other serves a completely different set of products to a different class of customers. Yet the two rivals spent years fighting over phonetically similar brand names and took the case to the federal court as well as to the U.S. Patent and Trademark Office.

› Nestlé vs. Cadbury: Who Owns The Color?

If you need an even more high-profile example, you should look into the Nestlé v Cadbury case in UK of color registration as a trademark. In 2004, Cadbury applied to bring the color Pantone 2685C (commonly known as Purple) under its trademark for all the goods that fall under the Intellectual Property Office’s class 30. In 2008, Swiss firm Nestlé challenged the decision on the grounds that the color alone is not enough for representing a whole brand graphically, and therefore, cannot be trademarked because it doesn’t comply with Article 2 of the Trade Marks Directive 2008/95/EC. The application for trademark also lacks “the required clarity, precision, self-containment, durability and objectivity to qualify for registration,” said the Court of Appeal. Nestlé welcomed the court’s decision and concurred with it saying that it “was the right outcome from a legal perspective”.

› Cadbury vs. Nestlé: Who Owns The Shape?

This mania to trademark even minute details of a company’s overall branding is getting out of hand. The legal spats between Nestlé and Cadbury have continued for a long time, as right after the high ruling on color; Cadbury filed a lawsuit over the shape of the KitKat bar. Nestlé, however, had a significant win in the form of a European-wide ruling from the board of appeal at the Community Trade Mark Office. The success reinstates the trademark on the famous chocolate bar and stops rival companies from producing similar products.

Can you imagine how small businesses are going to survive if we were to trademark every single aspect of design in our brand strategy? What McDonald’s, Cadbury, Nestlé and the like-minded corporations are doing in the name of trademarking is deplorable because this patent-madness is a never-ending one. If you don’t believe me, go do some research on Nestlé trying to own the world water, and oh… er, the fennel flower!? Share your thoughts with us whether you agree with this craze or not.