Trademark and copyright are two areas of law that strongly permeate each other. Graphic designer creating a logo within the meaning of The Copyright & Related Rights Act is the creator. And now an important question: Do you have a contract with him to transfer author’s property rights to the trademark used by you? If not, you may have problems in the future.
What is the proprietary copyright?
I will explain this by a simple example.
The painter who created a painting has to it:
- personal copyrights – so they can, e.g. mark the picture with their full name
- proprietary copyrights – they can dispose of it freely, e.g. through sale
The painter who sold the painting will still be able to say that he was its author. Personal copyright is not transferable. Therefore, you cannot transfer the rights to be the author of a given work.
If you buy a painting, you do not obtain proprietary copyrights for it. Personal copyrights are not transferable. So our painter will always be able to say that they are the author of the painting – even if they sell it. The matter seems obvious.
Ghostwriting problem:
Ghostwriter – is a person, often a journalist, who writes, for example, a book which someone else signs with his consent. This practice is popular among politicians. Only that claiming someone else’s authorship (even with the consent of the creator) violates personal copyright.
Trademark and copyright
When it comes to trademark and copyright, the situation is more complicated.
Often, companies commission marketing agencies to make a characteristic logo. The danger for such entrepreneurs results from the fact that they sign contracts for the logotype creation. This has nothing to do with transferring the proprietary copyrights to the logo. In order you to have full rights to the effects of their work is not enough to pay the invoice.
Moreover, transcript at the invoice that it includes the transfer of copyright is invalid.
These rights are transferred to the buyer only as a result of signing the contract for the transfer of proprietary copyrights to e.g. visual identification.
Copyright in the work contract.
Alternatively, the work contract should contain a comprehensive section on copyright issues. If such transcripts are missing, then you buy a “copy” and the “negative” remains with the creator. The creator still has:
‘… the exclusive right to use the work and dispose of it on all fields of exploitation and remuneration for using the work’
And sometimes graphic designers consciously remain silent about copyright. If the customer raises this topic over time, it is an opportunity for them to earn some extra money. They agree to sign the contract, but for a surcharge.
What if you do not have full trademark rights?
I will tell you a story of my client.
The entrepreneur commissioned the marketing agency to design labels for their products.
They came out really great so the entrepreneur started production. How surprised he was, when after half a year, products bearing similar labels appeared on the market by his competitors.
As it turned out, he did not sign a contract for the transfer of proprietary copyrights. Thus, the graphic designer did not think much executing similar order. He gently changed the design of already created labels and sold practically the same thing again.
And he had the right to do it – but violating interpersonal moral principles.
If you do not have the logo rights, how can you pursue anyone for copyright infringement?
The graphic creator may invalidate your registered trademark.
It is not a joke, but a very real threat.
After filing a trademark application to the Patent Office, the expert only checks if there are not absolute obstacles to give protection,
e.g. that you do not apply for the exclusive right to descriptive term.
The expert does not check (as there is no way how) whether you have the logo copyright or you have permission to register a trademark from the creator.
And the law clearly states that:
trademarks which violate personal and property rights of third parties are not registered.
Have you obtained permission to register the logo in the Patent Office?
If you run into conflict with the creator of the company logo, he may invalidate your trademark. In the dispute he will emphasize that he never gave you permission to register the trademark.
Do you know what your defense line should be then?
Submission of the contract, which shows that the creator transferred the property copyrights to the logo on you. You do not have to ask them for permission.
If you do not have such contract, the case is most likely to be lost.
Unfortunately, many companies have been operating on the market for years with an unregulated issue of copyright to the company logo. I would compare this situation to the ticking bomb.
It is unknown when it will explode.
I hope you understand now why this contract is so important.
How to secure your rights?
The contract with a graphic designer for a logo creation is one thing. The second thing is signing a separate contract on the transfer of proprietary copyrights to the effects of his work on you.
The vast majority of graphic designers are honest and willingly agree to such conditions.
However, it is good to agree everything before executing the order to avoid misunderstandings.
It is possible that the graphic designer for signing such a contract will require from you additional fee.
There is something more … copyright personal rights.
As I wrote above, copyright personal rights are not subject to renunciation or disposal.
Each of us will probably agree that there is nothing wrong with the designation of the painting. However, in the meaning of The Copyright & Related Rights Act personal rights include:
- the right to mark the work with your full name;
- the right to inviolate the content and form of the work;
- the right to supervise the use of the work.
The creator may request information about his authorship each time the logo is used. Can you imagine it? Each leaflet, letterhead or car will need to have a clear designation of the author. Not to mention the fact that he may not agree on how to use the work.
As you can see, the creator can start causing many problems.
Limitation on the exercise of personal copyright.
In order to prevent this, it is worth signing up a contract with them in advance about:
- not exercising personal copyrights in relation to a given work or
- transfer of exercising personal copyrights to the purchaser
And all this under contractual penalty of ‘XXX’ EUR.
Such a construction will not deprive the author of the rights about which I am writing above, but it will make us able to demand payment of the contractual penalty from them. And this may discourage him from making us miserable.
Trademark and copyright
Secure yourself with a good contract with the graphic designer.
Ask me about pricing
+48 607 416 240
office@lech.bydgoszcz.pl
Remember – contracts are for the time of war.
If there is no need, they lie in a drawer or binder for years. But when they are needed, they can save a lot of nerves and money.
Graphic designers are not lawyers. It is kind of a truism, but I am still surprised how many companies blindly sign contracts preapred by graphic designers. Any mistake in such a contract, the non-determination of important issues … works in favor of graphic designer.
The powers that will not be included in such a contract remain with the creator.
What solution do I see?
I can prepare a contract for You, like a tailor-made suit. A contract that fully secures your interests.
What is more, you will be able to use such contract for years in transferring rights to work effects of different graphic designers.
Just contact me.
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Trademark and copyright
Is your company logo a plagiarism
When choosing a name and logo for your company, many are wondering how to check whether there was a plagiarism. When it comes to registering trademarks, you should do the so called legal analysis of the brand.
Assessing the similarity of trademarks is not easy, so you should use the help of a patent attorney.
Such a trademark registrability search under copyright law is much more problematic. I explain everything in detail in the video recording below.
- 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