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Trademark Basics: What Can and Can't Be Trademarked?

Business.com / Last Modified: June 21, 2018
Image credit: Maksim Kabakou/Shutterstock

Trademarks can protect a brand or a logo, but detailed illustrations may be a bit trickier to trademark if they don't represent your brand or aren't sufficiently unique.

As a business, you want to protect your assets. This can mean anything from writing a good privacy policy to taking plagiarists to court, though the latter is fairly rare these days. 

When you’re producing graphics for your website, whether it’s a logo for the corner navigation or an illustration for a blog post or landing page, those are assets of value. You might have paid a graphic designer for them, or you might have made them yourself, but either way, they’re worth protecting. So can you trademark them?

Trademark vs. copyright

A trademark is defined as a phrase or symbol that functions as an indicator of a brand. The concept stretches back to ancient times, when high quality artisans working with metal or ceramic would have a distinct mark, called a maker’s mark, they would imprint on the finished product. Today, you can often identify the difference between a high quality piece of jewelry and a knock-off by the maker’s mark. A trademark is a legal enforcement of such a mark, both for physical products and for digital assets.

Virtually anything can be a trademark. Words, images, specific decorations; they all can count. A trademark has an associated “strength”, which is how defensible it is as your unique mark versus how widely it can be used by other entities. 

For example, an Apple trademark of its Apple logo with the bite taken out of it is fairly strong. Other entities are generally unable to use that specific symbol defensibly. On the other hand, Apple trying to trademark the word “apple” is going to be very weak; a bakery using apples is not in violation of the Apple trademark if it describe its pies as apple pies. Big Apple Bagels isn’t in violation for using the word apple in its name.

A very strong trademark is one that is completely made up. The brand name Xerox is one such example. There was no entity or name called Xerox prior to the company creating the name and using it in its branding. It’s very strong now, as any other reference to it is necessarily in reference to their usage of it.

Generally, trademarks should be registered. While you don’t need to register a trademark, registering your mark allows you to make it public knowledge and gives you precedence against future similar marks being registered.

Applying to register a trademark puts it on public record, and can backfire if you haven’t done sufficient research. Trademarks also need to be defended. If you allow other brands to use something too close to your trademark for too long, it becomes a diluted trademark and is no longer as easily defensible. Too broad a usage of too broad a trademark means you lose the ability to claim the trademark. There are numerous legal cases where brands have sued smaller companies for diluting their trademark, usually because of referential or parody uses of a mark.

Copyright, on the other hand, is an automatic protection of your own unique creations. You cannot copyright specific words like you can trademarks, barring unique brand names like Xerox. Copyright does not protect words, typefaces, logos or simple designs. It does protect more complex creations, like full blog posts, graphic designs and other images.

Copyright is automatic upon the creation and publication of a protectable work. When you publish a blog post, copyright for that post is yours.  When you create an image for your blog post, you own copyright over that image. 

Copyright protects your image against use you don’t approve of, but not against fair use alteration. What does and doesn’t constitute fair use is a broadly debated and legally fraught concept. Generally, people can’t just take your image and use it themselves, but they can edit the image for the purposes of satire. Simple edits like a change in hue don’t count. This is why you can’t just run a Google image search for images to use in blog posts – you need to find those allowable for use under an appropriate license, like Creative Commons.

Can you trademark a website graphic?

There are a ton of guidelines for what constitutes a trademark, and the United States Patent and Trademark Office provides a series of educational videos to help you navigate trademark law.

In general, you can’t trademark any old graphic design. Taking a photo of your front lawn and putting your logo on top of it isn’t a trademark, because you’re not going to be using the resulting image as a branding mark for your products in the future. On the other hand, your logo with stylized grass underneath it might make for a compelling and unique logo you could use on products. That resulting image could potentially be trademarked, though other lawn care companies with similar grass designs might want to defend their own use of similar designs if you try to register the mark.

You’re unlikely to be able to trademark any website graphic or illustration you’re using. If you’re creating illustrated characters for use in your branding – something like the WPMUDEV’s hero characters for different plugins – you can copyright those characters, but you cannot trademark them.

If you want to trademark something, you’ll be able to trademark your logo and, if sufficiently unique, your brand name. Individual products with their own logos can have those logos and names trademarked as well.  Otherwise, you’re looking at copyright, not trademarks, to defend your creations.

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