LogoGarden is a site that lets users create custom logos using a library of symbols combined with fonts, effects and other basic design tools. The idea is that someone with minimal design knowledge can quickly create a professional-looking logo for their company or site.
However, the site drew fire from the logo design community recently after it was discovered that dozens, possibly more, of their symbols were lifted from other designers without permission.
In response to this controversy and growing pressure from the community, LogoGarden has put out a call on their Facebook page asking for help in identifying the stolen symbols and removing them. But even as that is happening, others are complaining that it is taking too long to get known infringing symbols removed, especially from the UK version of the LogoGarden site.
The latest news is that the Graphic Artists Guild (GAG) is getting involved and asking for those who are infringed to inform them of the theft, with proof. However, it is unclear what, if any, impact the GAG will be able to have with this case.
Nonetheless, the case raises several interesting issues about these types of logo design services as well as other services that operate in a similar manner.
In short, this isn’t just a situation of designer beware, but of customer beware too.
The Issue of Trademark and Copyright
Normally, with logos, there’s an interesting blending of trademark and copyright law. The reason is that logos, by their very nature, used to represent a business, making them an issue of trademark, but in some cases can also qualify for copyright protection.
Though using something from another designer’s catalog might not qualify for trademark infringement, unless they or someone else had used it to represent a business and your use creates confusion in the market place, it very likely qualifies as copyright infringement. Since we’re talking about the symbols, meaning the artistic parts of the logos, it seems likely that most, if not all, of these elements are copyrightable.
What is less clear is who is potentially liable for this infringement. Based on the responses from LogoGarden, it seems they bought many of these symbols from third parties. If so, these parties would seem to be on the front line of any copyright claim as they were the ones who originally sold the logo and made statements of its authenticity.
LogoGarden itself certainly has at least some exposure here, especially if they failed to perform other due diligence, but perhaps most interesting is the potential for liability against their customers.
Simply put, LogoGarden’s Terms of Service (TOS) grants them indemnification from actions taken by their users. However, the TOS also reads as follows:
Users agree to defend, indemnify and hold harmless LogoGarden and its subsidiaries, affiliates, officers, agents, partners and employees from all liabilities or claims of any third party arising out of Users violation of this Agreement.
Each User agrees and acknowledges that he creates a logo at his own risk and that he is responsible for taking any actions necessary to determine whether its use will infringe any third party intellectual property, including trademark and/or copyright protection.
In short, LogoGarden makes no promises about the authenticity of the logos created on its service and puts the responsibility determining the infringing nature of the logo on the user. While most likely this was meant to hold them harmless against users who infringe trademarks, it specifically writes in copyright as well.
While it’s unclear if this would hold up (perhaps something for one of my lawyer friends to address), it’s clear at least LogoGarden is at least attempting to shift responsibility for infringement in user logos solely on the user.
What this means is that, if a designer targets a LogoGarden customer over user of his symbol, LogoGarden would, most likely, do nothing to help them.
Fixing the Problem
Obviously, there’s a pretty serious problem here and it goes like this:
- LogoGarden, somehow, ended up with a decent amount of lifted symbols in its library.
- Customers, thinking they were doing the ethical thing, used those symbols in their logos and put them on business cards and websites.
- Designers, possibly unaware of the origin, may go after those customers who have signed away rights to go after LogoGarden over such infringements.
This puts both designers and LogoGarden customers in an awkward position and LogoGarden, if it wants to be a good member of the design community needs to resolve it.
First, since the symbols that were stolen appear to have come from third-party designers, all designs by those parties should be removed immediately pending further investigation.
Second, for the symbols that have been found to be infringing, LogoGarden needs to do more than just remove them from its library, but also inform customers who used the symbol of the issue and then offer refunds as needed.
Third, there needs to be a more active hunt for other infringing symbols. Though putting out the call on Facebook was a good first step. There’s much more that needs to be done. Though it may be time consuming, image matching tools may be able to alert LogoGarden of other infringements.
Finally, there’s a greater need for transparency. Right now, other than the posting on Facebook and a few email replies, LogoGarden has been quiet on this issue. It’s time to make a more public announcement and explain exactly what they are doing to fix things, for both the designers infringed and the customers.
If they can do that, they can at least ensure that the damage to others is kept to a minimum. Something that, right now, is not taking place.
While it’s easy to look at this as a logo design issue or something that affects graphic design only, the truth is that this impacts nearly any creative industry.
Article sites, for example, regularly find themselves hosting plagiarized content and leave their customers out to dry. The same goes for stock photo sites.
Middlemen and value adding services, like LogoGarden, need to step into their roles and protect their customers as well as others in the community. Because it’s only with that protection that the industry can thrive.
It means taking some risks, but the risks of not doing it are even greater.