To hear intellectual property attorneys describe it, it seems so simple. Copyright covers creative works of expression fixed into a tangible medium of expression. Trademark covers business names, slogans and other items used to identify it in the marketplace. Patent covers ideas and inventions. Simple.

Then what about logos?

Logos are one of those spaces of intellectual property law where there is a great deal of overlap between two areas, in this case copyright and trademark, and businesses are known for using both to protect their logos from undesired use.

So where are the lines drawn? The answers aren’t very simple and requires looking deeper into what copyright and trademark protect and, even then, there aren’t very many clear answers to give, just a lot of gray area that has to be taken one case at a time.

Trademark and Logos

When most people think of intellectual property and logos, they leap to trademark and for good reason. Trademark is about protecting things that identify a business in the marketplace and logos are among the most important means of identification. As such, logos are generally protected by trademark and enforceable as such.

In many ways, trademark is much more broad than copyright. Where copyright doesn’t expand to things such as names, colors, typefaces, designs, etc. trademark does or at least can. However, trademark is also much more limited than copyright in that, where copyright is designed to protect against almost all unlicensed copying that is outside of fair use, trademark only deals with use of the mark that causes confusion in that company’s marketplace.

For example, Ace Hardware certainly has a trademark on their name, but they can’t stop Ace Bandages from also using the name as they are in separate markets (unless you are very careless when doing home repair). Likewise, Delta Airline and Delta Faucets share a trademark without incident and Apple Computers and Apple Music also shared a mark without major conflict (beyond a scuffle in 1989), that is until Apple entered the music business with iTunes.

All in all, logos, by their very nature, are used to identify businesses and groups and though trademark protection covers many additional things, it offers a much more narrow scope of protection. In short, trademark is designed not to prevent copying, but confusion in the marketplace, thus severely limiting what uses of the logo can be considered infringing.

Copyright and Logos

In order for a work to have copyright protection, it must reach a requisite level of creativity. Many logos, however, do not. Since copyright can’t protect a name, colors or the design of the logo, most simple logos simply do not have the required level of creativity to be considered copyrightable. However, many ornate or artistic ones do.

And here lies the confusion with logos. Many of them actually qualify for both trademark and copyright protection. In fact, the entire Omega v. CostCo case hinges in part upon a logo stamped onto a watch being copyright protected (thus making the import of the watch a violation of the copyright).

In short though, if a logo would qualify for copyright protection as a piece of artwork separate from its use as a corporate identifier, it is copyright protected. Nothing in the law makes the two rights mutually exclusive so many logos can and are enforced using both trademark and copyright.

Which Protection to Use/Fear

This means that, if you design a logo for yourself or your business, you actually may, if the logo qualifies, have two forms of intellectual property protection on it. Trademark to prevent competitors and others from using it to cause confusion in the marketplace and copyright to prevent most other unwanted copying.

Which protection to rely is a case-by-case question depending on the actual use that you are trying to stop.

Trademark is, in many regards, easier to defend and protect than copyright, especially since there is no registration requirement in the U.S. to obtain a mark or sue for trademark infringement (though there are still many crucial benefits to registration). That being said, there is also no notice-and-takedown system for trademarks and lawsuits or other trademark actions, such as domain name disputes, can be very expensive.

That being said, trademark’s narrow scope limits the situations it can be used to cases where the use is misleading or confusing customers. Where copyright covers nearly all unauthorized copying that is not a fair use, trademark only applies to a small fraction of all potential uses.

That being said, when using an artistic logo, there are now two areas of law to be aware of. Trademark is fairly easy to avoid, at least when using logos, as all you have to do is not pretend to have a relationship with the company that doesn’t exist.

However, with copyright issues of fair use begin to rise. In that regard, treat an artistic logo the same as you would any other photograph or painting and don’t make any use of it that you wouldn’t if it weren’t a logo. Using it with permission is best (many companies will actually provide logos for use on blogs and news sites) but barring that focusing on commentary and criticism while using as little of the work as possible helps stack the fair use case in your favor.

The good news, however, is that most blogs won’t really run into an issue, copyright or otherwise, with their use of logos. Fan sites and sites dedicated to a specific company or product need to be careful, but since most logos aren’t copyright protected and the majority of use of logos in a blog environment are a probable fair use regardless, the odds of actual trouble are very slow. You are much more likely to have a copyright dispute over a stock photo that you place in your blog than a logo.

That, in turn, is why I use logos a great deal on this site when talking about companies. It’s an easy way to add relevant visuals to an article without trademark or copyright concerns.

Bottom Line

In the end, logos are a strange area of intellectual property law where copyright and trademark often meet and overlap. However, just because many logos, though not nearly all, have dual protection between copyright and trademark, that does not mean that businesses and others with logos can stop all uses of them. Trademark’s limited scope doesn’t really add that much protection beyond the additional things it covers, namely non-copyrightable elements.

In short, while this area of the law can be very confusing, especially when faced with an unwanted use of your logo or a desire to use a logo, if it even qualifies for copyright protection, there really isn’t much need to treat it different than any other image.

Still, those who use logos or create them need to be aware of all the potential rights involved, both so they can steer clear of trouble and so they can enforce them correctly.

The Copyright Symbol Logo Artwork is by Jacob Cass and is licensed under a CC-BY 2.0 License

However, identifying yourself and your site goes well beyond just a simple attribution line. Though your name and site URL are important, they are not immediately evident to those who browse the Web.

The problem is that most people who surf the Web often do so very casually and do not read articles or look at images intently. Thus, they often miss basic attribution lines.

However, if you take a moment to brand yourself and your site, you can increase you can make it much easier for even the casual observer to identify your work and it increases your site’s visibility as it is copied, both with and without permission, across the Web.

Fortunately, doing so is very simple and only takes a few moments. Best of all, it is a very creative and, to many, one of the more entertaining parts of building a Web site.

Let’s Get Visual

The first key to branding your site is to have a strong and unique look and feel. To do that, you’re going to have to first ensure that your site does not use any stock themes, or at least has enough customizations to make it stand out among similar sites.

The best way to do that is to do the following:

1. Select a distinct name for your site or blog, along with an easy to remember URL
2. Get away from default themes and create your own look
3. Choose the colors you want to represent your site (ex: Red, Black and White for this site)
4. Create a unique logo for your site using those colors
5. Maintain your presence for as long as practical
6. Make sure that all of your marketing materials are consistent with your theme

If you do those things and use the same look and feel as you grow your audience, people will inevitably begin to associate your site with that look. They will also seek out visual cues to associate an article or other content with your site.

If you maintain your presence long enough and remain distinct enough, even casual Web surfers will recognize your content as it passes across their screen. It is a great way to market your site and build up an audience, but also a way to deter content theft and protect yourself against scrapers and plagiarists alike.

After all, the more familiar you are, the less likely it is that someone can pretend to be you.

Breeding Familiarity

The problem, however, is that, while most sites do a decent job of branding their actual home page, they do not take advantage of other opportunities to get their name and image out.

Marketers often refer to these types of interactions as points of contact, places where a potential customer or reader come in contact with your brand.

However, there are many times in which your content is in contact with a reader, but not your brand or your name. Those are missed points of contact and are well worth exploiting in many cases.

To that end, your logo is your most powerful and flexible tool. It is an image that can be carried with almost any content that you put out. It can be shrunk or cropped to fit in places too small for it as even a portion can trigger the same familiarity.

With that in mind, consider the following opportunities:

• If you offer an RSS feed, including a logo in the footer of the feed, similar to what Lorelle VanFossen does on her site (see above screenshot).
• If you offer embedding of images, include a non-intrusve version of the logo as a watermark, similar to iStockphoto.
• If you provide video content, include it in the intro and the closing. Also consider using it as an overlay, similar to GeekBrief.tv.
• Using your logo on any social networking sites you participate in to connect your profile back to your site.
• Likewise, when you claim your site as sites such as Technorati, making your logo your icon.

In short, any time in which a reader might interact with you, your site or your content, it is important to have these easy visual connections for them. It not only breeds familiarity with your site and connects all of the various elements of it together, but can help discourage plagiarists and scrapers.

Discouraging Content Theft

Obviously, if you watermark your images or add footers to your feed, you are already going a long way to protect your content from misuse.

However, by protecting the content by using an image, in addition to a name and link, you go a long way toward making sure that your users recognize where the content came from and do not mistakenly leave comments on or begin to visit other sites at the expense of yours.

It is important to remember, however, that links are still the currency of the Web and, in addition to linking your logo, it is important to include text links back to your site. This will help with the search engine consequences of being scraped or plagiarized and further encourage readers to visit your site.

In short, visually branding your site is not something that replaces your current content theft protection strategy, but something to consider doing in conjunction with it.

Conclusions

As I keep stressing on this site, there is no magic bullet when it comes protecting your site from content theft. No matter what steps you take, there will be cases that you have to deal with, likely through copyright.

However, there are ways to mitigate the damage that scrapers and plagiarists do and keep those situations to a minimum.

Branding your site is just one of those steps and it is a step that is simply good marketing all around.

After all, success on the Web requires that one be very skilled at what they do, but also that they have the marketing and public relations edge to push them above sites that may be competing with them.

As with business in the bricks and mortar world, beating your competition involves more than just providing a better product or service, but in marketing yourself correctly to attract new customers.

Branding can help your site in many different ways, protecting your content is just one of them.