In addition to direct client assistance, EJLee Law works with other firms when their clients have Trademark issues and concerns. Brand Strategy Discovery calls and Trademark search analysis reports are services EJLee Law offers clients who want to ensure their proposed trademark including names and logos are clear to use with their chosen product or service. This clearance process is another critical form of brand due diligence.
A unique situation was brought to my attention that I thought was worth highlighting. A business owner hires a graphic designer to custom design a logo for the business. The graphic designer designs the logo as promised and the business owner uses the logo in connection with their products or services. Later the business owner receives a cease and desist letter asserting trademark infringement or likelihood of confusion because of the use of the name/logo though the business owner’s products are not same as the 3rd party accuser (another story entirely). The business owner then accuses the graphic designer of not clearing the name.
In the graphic designer’s contract, the graphic designer warranted that they did not copy the esthetic of someone else’s logo design. Highly unlikely the graphic designer was warranting trademark clearance regarding the name itself.
Keep in mind that logos can fall under the protection of copyright where the logo itself is(must meet the minimally creative threshold) artistic, visual with colors and shapes and not just words.
Copyright ownership generally starts with the person or author who created the work. In the graphic designer scenario, the graphic designer usually assigns or transfers ownership to the person that commissioned the work under what is called work for hire.
Once a business owner begins using the logo as a source identifier for their products/services, it then becomes a trademark and under trademark law and later can be registered with the United States Patent and Trademark Office (USPTO).
As a business owner one of your first critical steps in starting your business is selecting the company brand name. This name will act as source identifier that distinguishes you from among the rest—signaling quality, excellence and the highest customer service standards. It’s imperative to run the chosen name through due diligence as it is ultimately the business owner’s responsibility to ensure their mark is free to use. A graphic designer is usually given a name and idea of what the business owner wants their logo to look like. It is not their job to ensure the logo does not infringe on someone else’s mark for source identifier purposes. When in doubt about a propose mark, hiring a Trademark lawyer is critical in preventing wasted marketing or unnecessary legal expenses. EJLee Law provides thorough trademark search analysis reports that check across federal and state databases to ensure the mark is free and clear for those products or services. If you or someone you know is unsure about their chosen mark whether starting out or considering a re-brand, reach out to EJLee Law to schedule a consultation! https://calendly.com/ejleelaw
***DISCLAIMER- ALWAYS SEEK INDEPENDENT LEGAL ADVICE FOR YOUR SPECIFIC SITUATION!