Graphic designers need to understand the ins and outs of intellectual property rights, copyright laws and design patents. Intellectual property rights and fair use policies not only help you understand what materials you can use and where, but they also protect your work from infringement by others.
Learn all about these legal intricacies in Intellectual Property Rights for Graphic Designers, a HOW U course developed by William M. Borchard. (See an excerpt on design trademark law below.)
In this four-week course, Borchard examines intellectual property laws in depth. He explains how you can protect your design work, how you might be infringing the design rights of another, to what extent you can use another’s designs, and practical steps you should take for protection and to avoid infringement.
For example, artist Richard Prince adapted the following photo by Patrick Cariou for an art exhibit, and the court ruled it fair use.
Register with code BORCHARD for 20% off registration through this week and next to join the course beginning Monday, June 30.
Read on for an excerpt from the course on design trademark laws:
Design Trademark Laws
When you use a design to indicate the source of goods or services and to distinguish them from the goods or services of others, you may protect the design as a trademark (or in the case of services, as a service mark) in addition to any copyright protection for the design.
Congress enacted the Trademark Law (also known as the Lanham Act) in exercising its commerce power under U.S. Constitution, Article 1, Section 8, Clause 3:
The Congress shall have the power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
Unlike the Copyright Law, which completely preempts copyright rights other than those specified by Congress, Federal trademark rights coexist with state “common law” trademark rights and state trademark registration systems.
Different Types of Trademark
Some design trademarks are logos that are inherently distinctive, that is, they are either arbitrary or suggestive as applied to the goods or services. Some examples of inherently distinctive logos, that are so recognizable that they frequently are advertised without any other indication of source, are the Nike swoosh and the Target bullseye.
Other design marks start out as being merely descriptive of the goods or mere ornamentation for them (known as their “primary meaning”), but through use and advertising they may become recognized as indications of source thereby acquiring trademark distinctiveness (known as “secondary meaning”). You can aid this by using “look for” advertisements pointing to the design as an indication of source. Examples would be a well-recognized computer icon or screen layout, the Coca-Cola bottle and the Levi’s red pocket tab.
If a design is functional in that it is essential to the use or purpose of the product, affects the cost or quality of the product, or would put competitors at a significant non-reputational related disadvantage, no one can claim the exclusive right to use it even if consumers, in fact, have come to regard it as indicating a particular source. An example of a functional item that may generally be recognized in fact but can never become a legally recognized trademark would be a sculptural bicycle rack. (Brandir Int’l, Inc. v. Cascade Pacific Lumber Co.)
The stylization of a word can be protected as a trademark. The distinctiveness of a stylized word mark depends on the strength of the word as a source designation and the elaborateness of the stylization. An example of a strong stylization combined with a weak word is the trademark LITE (stylized) for beer. After various legal proceedings, the owner was able to register the stylized mark if it disclaimed the exclusive right to use the descriptive word “lite” apart from its stylized appearance. This means that anyone can use the word “lite” as a trademark for beer as long as the form of display of that word is not likely to cause confusion with the design elements of the registered mark. (Millercoors LLC Registration No. 1,385,379)
A typeface is not copyrightable, and it also is not considered to qualify as a source identifying trademark. Of course, the name given to a typeface is a source designation that can be protected as a trademark. For example, there is a federal trademark registration of the term TIMES NEW ROMAN, Reg. No. 1,340,165 owned by The Monotype Corporation.
To learn more about design copyright laws and how to protect your own work, register for An Introduction to Intellectual Property Rights for Graphic Designers with William Borchard. Enter code BORCHARD for 20% off registration. Register here.