Can I Trademark A Logo On A Shirt?
One of the misunderstandings about shirts and logos is that a logo is protected by copyright. But most logos don’t have copyrights. Instead, logos are actually protected by a trademark, which is a legal protection that applies to a name, phrase or logo. Copyrights, on the other hand, are legal protections for people who create original literary, dramatic, musical and artistic works. So although many people use the words “copyright” and “trademark” interchangeably, they are quite distinct. Trademarks for logos are filed with the U.S. Patent and Trademark Office and last 10 years. However, the USPTO does require registrants to file an affidavit after the fifth year that the trademark is still active. If registrants fail to do so, the trademark is canceled and no longer under protection. If you want to use a logo, you should first check the USPTO website to determine if the trademark is still in force. If it isn’t, you may be able to use that logo.
In some instances, you may want to appropriate a creative work of art into a logo, in which case copyright law would apply. Any works created prior to 1923 are usually considered to be in the public domain. So when it comes to shirts and logos, any logo you want to appropriate from a work of art that was made before 1923 is free and clear for your use. If a work is under copyright, however, that copyright typically lasts 70 years after the death of the creator, or 120 years after the date of first publication – whichever occurs first.
Can You Put Copyrighted Logos on T-Shirts?
After some success selling T-shirts, you may decide to expand your efforts by incorporating copyrighted logos. But before you can proceed, you have to know what the law says about selling shirts with copyrighted images. Trademarks or copyright can protect logos, and both forms of intellectual property protection restrict how others may use the logo. In fact, copyright and trademark violations can in some cases lead to criminal charges. Selling shirts with copyrighted images isn’t impossible, but you should never use someone else’s logos on your T-shirts or other clothing without their explicit permission. Understanding the meaning of copyright and trademark and knowing the instances in which selling shirts with copyrighted images is legal can help you develop your T-shirt logo strategy.
1. The best practice is to create an original design.
The best way to avoid copyright and trademarks is to create an original design. If you come up with a design that’s truly your own, and you haven’t based it off of anything else or made it look similar to an existing design, you can feel pretty comfortable that you’re not violating anyone’s trademark or copyright. It can be harder to come up with something that’s unique to you, especially with so many designs already on the market, but it’s still certainly possible to create a unique design to sell on your t-shirts. When you do that, you greatly lower your risk of having someone try to get you into trouble for a copyright or trademark violation.
2. Copyright and trademark are not the same things.
Many people use the terms copyright and trademark interchangeably, but the terms aren’t identical. In short, trademarks are for terms, symbols, and names. A copyright is used for original creative works, like movies, books, paintings, songs, web content, and choreography. If you’re putting a company’s name on a t-shirt without permission, you’re violating their trademark. Song lyrics? That’s a copyright violation.
For more information about copyright and trademark, visit the United States Copyright Office and the United States Patent and Trademark Office, respectively.
3. Know the rules when designing t-shirts.
You can use flags, national symbols, the likenesses of political figures, and coats of arms wherever you like. These aren’t protected by copyright or trademark, and you won’t face a lawsuit over putting them on a shirt. If there’s a famous picture of those things, though, don’t use the picture. While the images in the picture might be fair to use, the photograph itself is going to be protected. Also, don’t use famous, recognizable characters on your shirts. Those are all protected, and you’ll likely face legal action.
There’s one exception, though. “Fair Use” allows for parodies, so if you’re making parody t-shirts, you can generally get away with using famous characters that others can recognize. Just make sure it’s clear what you’re doing, and avoid being too offensive. The parody opportunity isn’t just for people and characters. It also extends to things like logos, so you’re free to use those in the same manner, as well. If you’re planning on using a picture you found on the internet or a famous quote, those can be okay in some cases. Before you use them, be sure to learn where they came from and how to credit them properly.
4. Is it trademark or copyright infringement? Knowing the facts can protect you.
That picture you found on the internet might make a great t-shirt, and the quote from your favorite actor may really speak to you. Still, using these things on a shirt can get you into trouble if you don’t do it the right way. Famous quotes, for example, are generally all right to use, as long as you attribute them properly. Put the quoted person’s name on the shirt in much smaller print, or add it to the product description on your website. The author could pursue you, but they aren’t likely to do so.
For internet pictures, there are some sites that offer photos free for commercial use, as long as the owner of the photo gets credited. Most sites don’t offer that though, so if you want to use those photos, make sure you track down the true owner and get written permission to use the photo for commercial purposes. That can protect you from any legal problems you might otherwise face, and is the only safe way to use a photo in your t-shirt design. For more information on attribution and different licenses, check out Creative Commons.
Also consider the Right of Publicity, which states that people have the right to control the commercial use of their identity. If someone feels you’re using their identity commercially in a way they object to, you could be facing a lawsuit. With all the risks you take to use the work and likenesses of others, creating and using your own t-shirt designs is the best option.
Register for Copyright Protection
As an artist or designer, you own the copyright to your visual artwork upon its creation, according to the United States Copyright Act of 1976. To enjoy the maximum copyright protection available under law, register your works of visual art with the United States Copyright Office at copyright.gov. At the site, create an online account with the Electronic Copyright Office. Once your account is live, fill out the online copyright registration application, pay a $35 fee and upload a copy of your T-shirt logo. The copyright office sends an electronic receipt. Upon completion of the copyright registration process, a paper registration certificate is mailed to you. You can log in to the Electronic Copyright Office site at any time to check the status of your application for copyright registration. You may also mail in your application for copyright registration for a fee.
You can print copyrighted logos that you don’t own on t-shirts only if you are party to a licensing agreement with the owner of the copyright. Licensing agreements are standard practice in the imprinted t-shirt industry; for example, a printer must have a licensing agreement or other written permission to print professional sports logos. Licensing agreements spell out the terms that the logo owner grants to the printer or marketer of t-shirts, including payment, dates of use and printing specifications. The Graphic Artists Guild and AIGA, the professional association for design, both offer boilerplate licensing agreement templates to their members.
Satire Or Parody
It is legal to create an image that is a parody of a logo and print it on a t-shirt because the U.S. Copyright Office allows parody as fair use of copyrighted works. The right to parody exists as a protected form of free speech; for example, Mad magazine creates parodies of popular movies and political figures. In the case of a parody that closely resembles a copyrighted logo, you could be accused of copyright infringement, as the law leaves room for subjective decisions on fair use and the right to parody. You can register parody images you create with the Copyright Office, or obtain a license to print parody images from their owners.
If you are accused of copyright infringement, the owner of the copyright can sue you for actual or statutory damages, whichever is greater. If the owner of the logo did not register her artwork for copyright protection, she can legally stop you from printing the logo, but won’t be able to sue you for maximum damages. Upon receipt of a cease-and-desist letter from a copyright owner or her lawyer, immediately stop printing the logo on t-shirts.
What happens when you violate a trademark/copyright?
You will generally receive a cease and desist letter by email and/or registered mail by an attorney who represents the trademark owner. This letter will inform you that you have violated a trademark/copyright and will include a copy of the trademark and screenshots of the design that violate their trademark.
The cease and desist will request that you immediately cease and desist of all the infringing designs as well as immediately cease all plans for the production, marketing, or manufacturing.
The letter will usually request that within 10 days that the following details be provided or confirmed:
• Detailed list of all stores online and physical which you currently or have marketed the infringing goods and including contact information for all those locations
• Full accounting of all the sales you made with the infringing goods
• The name/contact information of the designer if it wasn’t you
• List of what stock remains of all infringing goods
• Copies of all marketing materials
• Confirmation that all advertisements and/or references to the design on or off your website as well as any 3rd party websites who may have posted your products online.
• Written assurance that you will no longer use the trademark or try and register that trademark.
Providing the information above will not waive the trademark owners rights to take legal action against you. The information above provides the legal counsel and the trademark owner the information to make a decision of what to do next. Most trademark owners prefer to settle out of court. It is common that trademark owners request that you sign an agreement that states you acknowledge what you did, that the statements you made are accurate, and if you are caught lying or ever sell more products with the trademark that they will take legal action against you.
Along with the agreement, the trademark owner will often request you pay them the profits you made from selling their trademarked design and/or additional penalty fees. Even if you have only sold a few t-shirts with an infringing design the requested payment amount is frequently from $1000-$20,000. If you have potentially infringed on a trademark you have a choice to make. Your options are to pay the amount they request for damages, attempt to negotiate a different damages payment or take the chance the trademark owner will take you to court in their state which will cost you at minimum $10,000 to get started. The amount required to defend yourself can get very expensive and if you lose you, it is likely that you will need to pay the trademark owners legal fees plus whatever damages were assigned. There are lots of grey areas in trademark/copyright law and unfortunately it isn’t always about being right or wrong. If you don’t have the time, money or resources to fight a trademark/copyright accusation your best bet is to pay the requested damages amount to avoid having to go to court.
Logo Trademark Attorney Free Consultation
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506