IP: Copyright protection in design marks

Obtaining and registering copyrights in design marks can be a powerful tool against infringement.

Companies should take steps to secure copyright ownership in their design marks. While a distinctive design mark merits protections under trademark law, it also can be protected by copyright law if it contains the requisite originality and creativity. Obtaining and registering copyrights in design marks can provide a company with a powerful tool against infringers.

A design mark is any symbol or device that identifies a company’s goods or services and distinguishes them from those offered by others, such as the Nike Swoosh, the Starbucks green siren logo and the Morton Salt Girl. A design mark may be subject to copyright protection if it possesses at least a modicum of creativity. Mere variations of typographic ornamentation, lettering or coloring, for example, are not copyrightable.

The fact that the designer still owns the copyright in the work does not necessarily preclude a company from using it. A nonexclusive license to use the artwork is generally implied if the parties’ conduct indicates an intent to grant such permission. But the implied license may be limited in scope and, since it’s nonexclusive, it will not prevent the designer from licensing the image to another company. Moreover, nonexclusive licensees do not have standing to sue for copyright infringement. Obtaining all of the exclusive rights in the artwork afforded under copyright law ensures control over how often and in what manner the artwork is used.

Below are some tips to securing your company’s copyright ownership in design marks created by outside designers:


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Michelle Miller

Michelle A. Miller is a lawyer with Brinks Hofer Gilson & Lione.

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