Today I will focus on the problem of plagiarism, which is often signaled to me by my clients. They ordered a graphic designer or an advertising agency to create a company’s logo. They ask how to check whether such logo is not plagiarism? And if I, as a lawyer, can give a legal opinion that the logo does not infringe the law. The answers are presented below.
How to check whether a logo is not a plagiarism?
I will say it bluntly. There is no way to check if your logo is not a plagiarism. What is more. No sensible (not starving) lawyer is not going to prepare for you a legal opinion in which he writes that your logo does not break the law.
I will tell you why.
This problem can be analyzed through the prism of:
- copyrights, and
- trademarks
Copyrights and plagiarism of the logo.
The protection resulting from copyright is granted by the law. It results without the need to register as it is in the case of trademarks.
Polish Copyright Law says in art. 1 paragraph. 3 that:
The work shall be covered by copyright since it has been established, even though its form is incomplete.
Thus, even the preliminary drafts, which are send to you by a graphic designer for approval are protected.
To answer the question whether your logo is not a plagiarism we should compare it with all the graphics that have been created so far … in the world (!). This is the reason why for such asked question no lawyer shall undertake to answer. What else is comparing your logo with the graphics specifically indicated.
Google comes to the rescue (although limping).
There are free tools that allow you to do searches on the graphics. One of them gives the Google search engine (link). By clicking on the thumbnail of the camera you can upload graphics to be searched. This works similarly to the searches on the word queries.
The problem is that checks are carried out only in relation to what has been published on the Internet. Some results often leave much to be desired.
And how to check what was published before the “Internet time”?
Example:
The same logo as your was published in the 70s in the magazine “Friend.”. Your graphic designer accidently found it and copied. If a scan of the magazine will not be uploaded in the Internet, Google will not be able to find it.
Conclusion:
There is no physical possibility to check whether your logo is not a plagiarism. This does not mean that you are here totally defenseless what I write below.
Trademark and plagiarism of the logo.
You can protect your company’s logo in the Patent and Trademark Office as a trademark.
Regulations reguire that your trademark was different from the trademarks already registered. It can not create a danger of confusion. We can speak about similarity only when the mark is used to designate similar products or services.
Example:
If your logo is used for determination of confectionery, and someone previously used identical logo for determination of artificial fertilizer – marks will not be considered as collisional.
Polish Industrial Property Law says however in art. 1321 paragrap 1 point 1, that:
[…] a right of protection shall not be granted for a trademark:
1) the use of which violates the personal rights or property of third parties […]
Such right of a third party is the copyright to logo. In the above example the logo, which is a plagiarism of the earlier mark – should not be registered. It infringes someone’s copyright. However if it is registered, it is a basis for the invalidity of a trademark.
The search in the databases of the Patent Offices.
Theoretically, it is possible to check if your logo is not a plagiarism of the mark already registered.
In practice this is almost impossible.
To determine if your logo does not infringe the law, you should look through all the trademarks filed and registered. And again, not only in Poland but all over the world. Moreover, you should not restrict to the chosen category of the goods or services.
Only examination of trademarks in all countries of the world would answer the question of whether your logo is not plagiarism.
Besides the search of marks by their appearance is very difficult. When making a trademark application its layout should be presented in the application. It must also be described according to a special classification. In 32 classes, it classifies all the graphic elements of trademarks such as. geometric shapes, colors and human figures.
If you mark a several of these categories while doing a search, you usually get the results in the form of thousands of trademarks, which are not even similar to yours.
It’s like looking for a needle in a haystack.
Anyway, there appears the same problem as in the case of the copyright. If the owner of such trademark hadn’t file a trademark to protection, so it will not be in the databases.
Protect yourself from a plagiarism by a good agreement with a graphic designer.
I always advise my clients to sign with the creator the Transfer of a Copyright Agreement. If they don’t do this, they will only receive a copy. A negative will be in the hands of the creator. He has a full rights to the logo.
He simply tolerates using the logo by a customer.
And therefore, in such agreement, there should be notations that logo is not a plagiarism. And if it turns out that the creator lied than he will bear the full financial responsibility for causing a damage.
Curiosity:
I had a few cases where a graphic designer, after reading my agreement, made changes to a logo appearance. My guess is that he was afraid that his inspiration of someone else’s work was too big.
It is also a psychological pressure. The creator has awareness that he will face the consequences in case of any legal problems arising from his fault.
And that’s the best way to fight against such unfair practices. Market research that would answer the question whether the logo is not a plagiarism would be extremely time-consuming (and expensive).
Moreover, it would not give the expected answer.
It is only the creator who knows what the truth is.
As an entrepreneur, you need to predict possible problems. Although 99 out of 100 graphic is honest, this one may want to deceive you.
+48 607 416 240
office@lech.bydgoszcz.pl
- Small company and trademark. When to file a trademark application? - 20 March 2018
- Trademark similarity: When does it lead to an infringement of the law? - 15 February 2018
- Rebranding – when it is a threat to your company? How not to lose a trademark? - 8 January 2018
