IP Protection of Typeface Logos

A current trend in design and marketing are simplified corporate logos or typeface logos.  Take Hull Barrett’s logo as an example:

Hull Barrett

The words “Hull Barrett Attorneys” in the logo are a typeface and not an artistic element like the peach in the State of Georgia’s logo.  Due to this trend, companies often inquire about protecting intellectual property in font or typeface logos.

The Background of Using Font and Typeface Logos

Typefaces and fonts are often used to create logos, designs, and graphics.  Such designs are protectable as a form of artistic and intellectual property. There is much confusion, however, regarding typefaces and fonts—particularly who has the rights to use them.  Many people are not informed of the law governing the use of typefaces and fonts. Not all typefaces or fonts may be used freely without license to do so.  Those interested in intellectual property rights in fonts and typefaces include type designers, lettering artists, punch-cutters, calligraphers, software developers, as well as persons or entities interested in trademark protection of names and logos written in certain typefaces.

What is the Difference Between a Font and a Typeface?

The terms “font” and “typeface” are often used interchangeably.  While the colloquial definitions are nearly identical, the difference between the definitions in a legal sense is significant. Put plainly, a typeface refers to the way that a set of characters (sometimes called “glyphs”) appears on paper or a computer screen.  Some examples of typefaces are Arial®, Times New Roman®, Helvetica®, and Lucida®.  A font, however, is a computer program or software that instructs a printer or computer display the manner in which a glyph or character is intended to be shown. Consequently, what people generally refer to as a “font” in conversation is actually a “typeface.”

Are Fonts and Typefaces Protected by Federal Copyright Law?

Congress has determined that “typefaces as typefaces” are not protectable under United States copyright law.[1]  Federal courts, on the other hand, have found that font software programs are protectable under federal copyright law because they are original works of authorship due to the creativity and artistry involved in their creation.[2]  Therefore, persons and entities that create typefaces should be aware that they do not have any copyright in such typefaces. But, those that create font software should consult an attorney in order to register and protect from infringers the copyrights that they have in font software.

Are Fonts and Typefaces Protected by Federal Trademark Law?

While copyright law deals with how a typeface or font is written, United States trademark law can protects the name of the typeface or font.  Some examples of typefaces which have been registered with the United States Patent and Trademark Office (“USPTO”) include Times New Roman®, Helvetica®, and Lucida®, while some examples of font software include Wingdings® and Helvetica®.  The owners of these trademarks may license the trademarks to software programs that use the typefaces.  However, this presents the problem that infringers need only to change the name of the typeface or font when using them to skirt the protections of trademark law.

Trademarks can be registered in a stylized design or typeface, or in block lettering.  If a trademark is registered in block lettering, its owner enjoys trademark protection regardless of the typeface in which the mark is written.  The waters get muddied when you consider that typefaces are commonly used as part of a logo or design. For example, the iconic Coca-Cola® logo mark, which has been registered numerous times, is written with specific cursive characters.  As mentioned before, the typeface itself is not subject to copyright protection in the United States, but the logo design in its entirety is protected as by United States trademark law.  Thus, trademark law can protect the design of a typeface so far as its use in a design, but not the typeface itself.

Typefaces themselves are not protectable under United States copyright or trademark law.  However, the names of the typefaces are protectable by trademark law, and the font software used to produce the typefaces is protectable under copyright law.  Those that create typefaces and font software, or design trademark logos should consult an attorney to help protect their intellectual property rights.

Typeface Logos

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[1]              37 C.F.R. § 202.1(e).

[2]              Adobe Sys. v. Southern Software, Inc., 1998 U.S. Dist. LEXIS 1941, 45 U.S.P.Q.2D 1827 (N.D. Cal. Feb. 2, 1998).

Image Credit: Pixelbliss/shutterstock.com

Four Tips to Start-Up Companies for Avoiding Trademark Pitfalls

In the early stages of start-up companies, generally protection of intellectual property rights is not a priority—whether it be from oversight or as a result of tight finances. Understandably, the leadership of start-ups primarily focuses on funding, organization, strategy, growth, talent, and marketing. Whatever the reason, neglecting to protect a start-up’s intellectual property at the inception of the company can be devastating in the long run.

Fortunately, with a little research and a reasonable cash outlay, companies can avoid many intellectual property pitfalls. Here are four tips that start-up companies should follow:

Tip 1: Not Already in Use

The business name is a critical factor in establishing and maintaining a brand to be protected by state and federal trademark law throughout the life of the business. One major stumbling block to a successful start-up is selecting a company name that is identical or similar to a name that is already in use. Remember, someone in a neighboring city, county, or state may have come up with a similar name. This problem can be avoided entirely with some preliminary research.

From the onset, the business should also decide if it will operate under a trade name. A trade name is the official name under which a company does business. It is also known as a “doing business as” name, assumed name, or fictitious name. For example, the name of a start-up company might be Robertson, Inc., but the company may decide to open all of its offices under the name “Robertson’s Rentals.”   As with the business name, it is important to select a trade name that is not already in use in order to receive maximum protection under federal and state trademark laws.

Start by researching the business name AND the trade name with the Secretary of State. The Secretary of State holds a database of registered domestic and foreign businesses and most can be searched online (Georgia and South Carolina). It is recommended to search the databases of all states in which the new company plans to do business. After searching the Secretary of State database for registered names, the start-up will need to search for registered trade names (not business names) in the records of the Clerk of the Court of General Jurisdiction in the county containing the principal place of business. While this type of search is not online, it can still be performed with relative ease.

Note: In your business formation process, contact a trademark attorney to register the trade name or fictitious name should you decide to utilize one. Luckily, registering a trade name is generally an inexpensive pursuit, especially in Georgia or South Carolina.

Tip 2: Does Not Run Afoul of Existing State or Federal Trademarks

Another consideration in choosing how to name the business is selecting a company name that is not identical or similar to a registered state or federal trademark. This is separate from a Secretary of State search or a county trade name search. A start-up should also exercise the same caution when naming products or services. Trademark rights are generally based on the principle that the first person or entity to use a mark has priority, whether trademarked or not. A trademark does not necessarily need to be registered in order to have priority. Therefore, if a start-up chooses a company name, product name, service name, or slogan that is already in use by another company, the start-up runs the risk of exposing itself to costly litigation, otherwise known as infringement.

Search the Trademark Electronic Search System (“TESS”) on the website for the United States Patent and Trademark Office (“USPTO”). Also, some Secretary of State websites have the capacity to search registered state trademarks. Finally, searching Google, Bing and Yahoo will also help a start-up in deciding a name.

Tip 3: Not Already an Existing URL

When choosing a company name, product name, service name, or slogan, a start-up should perform an online search to find out what URLs have been secured. Companies often overlook that website addresses are a form of intellectual property. Registering a domain name costs merely a few dollars, so a start-up should be sure to register a domain name that would not be easily confused with other businesses. Searching Google, Bing, and Yahoo is generally all that is needed to be sure that no identical or similar domain names are already in existence.

Tip 4: Plan in the Early Stages of the Start-up

While intellectual property registration should be sought as soon as the start-up can afford it, companies justifiably spend their limited budgets on strategy, growth, talent, and marketing. Thus, it is important that a start-up strategically plan to protect its intellectual property. As the company generates revenue, funds should be earmarked for intellectual property protections. A start-up should retain a trademark attorney for help in performing a full trademark search, filing a trademark, and executing other necessary legal actions to protect its intellectual property. A start-up should also police its intellectual property—meaning that the company should ensure that others are not making use of its marks without permission. If someone steals intellectual property, the start-up should retain counsel to send cease-and-desist letters and file infringement suits if need be. After the start-up has worked so hard to foster and hone its intellectual property, it should protect it.

Why Start-Ups Should Follow These Steps?

Following these four tips will provide a start-up with protection against the copying, theft, and illegal use of its marks. Additionally, the start-up will be protected from infringement litigation from other established businesses for intentional or unintentional use of their marks. Finally, seeking financing for the start-up will be easier because a start-up with protected intellectual property rights will gain improved attractiveness to investors. Starting a business with an intellectual property strategy is key to the success of the business.

Check out our other links for more information about copyrights and trademarks.

start up

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