33 thoughts on “Stolen logo? What would you do?

  1. Elle Cardenas

    I think that as long as you 1.) didn’t deliberately set out to borrow elements from another design, 2.) have enough differentiators in your own logo that gives it a point of difference from the other company’s logo and especially if 3.) you did all of the above AND the other logo isn’t registered or trademarked, then it’s fair game.

    It’s not hard to imagine that as designers, we might come up with similar designs/concepts (hello Apple and the vector silhouette craze) every now and then— it doesn’t mean that we’re “copying” just by virtue of the fact that we can come to the same conclusions as our peers.

    I think you did more than enough by searching through Logo Lounge and going through TM’s and ®’s . Personally, I like to go on sites for inspiration before designing, just to avoid designing too similar, but outside of that, unfortunately we just don’t always have the time or resources to search the entire internet. We do what we can to avoid it, but sometimes it happens.

    I definitely would not walk away from the logo for your client. Especially if they’ve invested as much as they already have. I don’t think the Texas company has enough for a legal claim- if that were true, everyone using silhouette vectors would seriously be in trouble.

  2. Melanie Shellito

    I’m anxious to hear what pro-active steps other designers are taking — I sometimes wonder if I need to push my clients towards trademarking their logos, or if it’s largely an unnecessary expense. This situation would seem to show it’s not ‘unnecessary’ at all…!

  3. adam

    in regards to #4 and the comment “[their] legal department ‘wasn’t comfortable’ with the similarity and she didn’t feel they could allow us to use our logo”

    “not being comfortable” is not any legal terminology i have ever heard. that phrasing, along with the non-legal dept non-profit saying they dont “feel” they could allow it. none of that is any sort of legal speak or directive.

    from what i understand, as the long as the logo isnt a blatant rip-off, and the other logo is not actually trademarked (even though there are “intellectual copyrights”) . . . both logos can be used.

    i would suggest the designer who asked this question have her client trademark their logo, STAT!

  4. Christine Whone

    I agree with Adam. A lawyer’s role is to represent clients in a court of law or ado advise or act for the client in legal matters. They’re your interpreter of the law. Laws protect rules that define a person/corporations rights and obligations, including copyright and intellectual property laws.

    So, the rep coming back to the designer saying, “their legal department ‘wasn’t comfortable’ with the similarity and she didn’t feel they could allow us to use our logo” – who cares? No one cares what you feel. We only care what you think!

    Seems to me as if the stolen logo issue wasn’t taken seriously by the opposing legal department.

  5. Geri

    Yes, I would agree that the term ‘wasn’t comfortable’ isn’t legalese, and one should have no legal obligation to cease using a logo based upon someone’s comfort. That being said, it’s too late to protect yourself should legal action be taken. No designer can be everywhere and know that the logo they have designed for a client exists no where else in the world. In fact, if it is a good idea, the chances of someone else thinking of it are quite high. We make a practice of having the client sign a release form when they have chosen their final design, and BEFORE any printing or production of any kind or any use has taken place,that clarifies that while we have done our best to make them look different from everyone else, there STILL exists the possibility that another logo exists out there somewhere in the world that we are unaware of at this point that may be similar, even too similar. If they want to continue, they accept the chance that they may be asked to cease using it, and release us from any litigation or legal fees that may result. Just good business practice. We graphic designers may be pretty powerful, but we are not omniscient.

  6. sophie

    We had a copyright and trademark attorney speak at our AIGA chapter a few years ago and, while she enlightened us to many things, her information also emphasized the difficulties of such situations.

    From my take as a designer (not an attorney), it seems like you did everything right. You did a minimal check in advance and you made an intentional effort to design an original logo. You also contacted the Texas co-op, which seems like a kind, generous and not totally necessary thing to do, considering their logo isn’t registered.

    You mentioned your co-op client has a limited budget. Chances are the amount you charged them accommodated this budget. For that price, your co-op client can’t expect you to do anymore research than you did. Research, after all, is time and time is money. When the attorney spoke for us, she mentioned her firm specializes in doing such searches and designers hire them to do this for them. I’m sure the cost isn’t minimal! Therefore, a logo client must be willing to pay for every service it expects of its designer.

    That said, this needs to be discussed with the client and covered in the contract. It needs to be discussed what search options are available and what the designer will do for what cost. It then needs to be stated in the contract to what extent the designer will research and that, to the best of the designer’s knowledge, the logo will be original. There also needs to be a statement protecting the designer, should such a situation arise. (My lawyer helped me draft such clauses for my contract.)

    About the Texas co-op’s response. I agree with everyone above. The Texans have no legal claim if they haven’t registered their logo. They probably know this and are blowing as much hot air as they can muster. And like everyone else says, your co-op client should register their logo immediately, like yesterday! Expensive, yes, but if they like their logo, it’s worth it.

    And finally, I’d talk with your co-op client about all this (most people have little understanding of this until things like this happen). Explaining the legalities will give you credibility and it will emphasize you weren’t negligent in your work, especially given the price they paid for your work.

    1. Melanie Shellito

      I agree it would be nice to see the two logos, but actually the question posed is about preventative measures designers take, and responsibility after something like this is discovered. Perhaps if the two logos were shown, the discussion would quickly dissolve into a ‘too close or not’ argument. There have been some really informative suggestions posted about research, trademarking etc., however, and I think this has been a really helpful discussion already!

  7. Alonso Reyes

    I have the same problem doing the image for a destination Puerto Vallarta we were in a contest, but the government had a strong relation with one of the agencies but they like my idea, they sent my logo to this agency and they just did a couple adjustments and voila! the new logo was done jajaj. I know this because we saw the first draft and was the opposite and they were the only ones who had a second chance to improve there ideas.

    This happens a lot and like Elle Cardenas said as designers we can come up with close ideas, sometimes are designers with very low values that they simply don’t care if it’s the same. They work only for money not passion and they don’t invest time or efforts doing what they do.

    I think the best you did so far was putting them in evidence and that hits harder than a lawsuit as you can see I live in Puerto Vallarta and I have knowledge of what happen to you and I will comment so this is already viral!!!

    My best wishes!

  8. Jeff Fisher LogoMotives

    Like others have mentioned, in answering the questions above, it would be helpful to see the logo examples in question. Similarity in logo design does often occur unintentionally – especially when simple shapes or common type treatments are used to create an icon. In part, that is why I design many of my logos using unusual shapes for icons, or combining shapes and type in an effort to create a unique design.

    While a search of LogoLounge, or the government’s trademark registry, may be helpful, these days I don’t think those efforts go far enough – particularly with the international reach of the Internet. Last year, after learning that the DIY logo site LogoGarden had been “appropriating” my logo designs (from LogoLounge), curiosity got the best of me and I began to use the Google Reverse Image Search tool to see who else might be making use of my original designs. The results were amazing, frustrating and maddening.

    These days I suggest that designers, and clients, make use of Google’s Reverse Image Search as a tool in avoiding similarity situations that are too close for comfort – and blatant rip-offs of designs.

    Trademark or copyright registration of a logo design is not required for an entity to establish ownership rights for a design. It is fairly easy to establish longevity in usage of a design – and that will often result in proving a legal ownership in such a case. I know this from several situations with my own designs, including one with the Italian ad agency for a European store chain that got kind of bitchy with me about a logo they supposedly designed. Funny, they backed off when I was able to provide them documentation of my design in use going back to 1999. I don’t provide copyright/trademark services for my clients. However, I always encourage them to make the effort themselves. The process is not all that expensive and can be done online these days.

    I’ve been dealing with these issues a lot in the past year ( a href=https://www.facebook.com/media/set/?set=a.10150310081744184.355860.18597299183&type=3>here’s a Facebook gallery of examples primarily from the last 12 months). I’m sure there have been many “Oh, sh*t!” moments when my initial email is received by the offending party. Most rip-offs are removed immediately. Some begin to push back – until proof of usage is provided. In many cases I have filed Digital Millennium Copyright Act (DMCA) complaints with the company in question – or their webhost – for removal of the images. I’ve received financial settlements for damages in some cases. In many cases, the company/organization in question has been presented the logo design as an original design by a supposedly “professional” designer – and the “victim” will go after that designer.

    A designer needs to make every effort to make sure their logo design is unique and original in the first place. Be very careful out there, folks.

  9. Kyra

    I just had something similar happen to me. When the client showed the logo to his attorney his attorney noted that it was very similar to a logo for a very large corporation. He (the attorney) advised not ending up having to fight that fight and I’m back to the drawing board. I found it to be a somewhat embarrassing situation even though I had never even (at least consciously) seen the other logo. Interested in what steps other designers take to avoid situations like this.

  10. Anne C. Kerns, AIGA

    Note: I am not a lawyer and this is not legal advice!

    Trademark law is very different than copyright law. It is meant to differentiate goods and/or services in the marketplace, so as not to confuse the consumer. First of all, if the industries are different, I believe they have no case. If the region is different, I believe they have no case. They may try to bluster and intimidate, but ultimately the “marketplace” is what matters. If they have not aggressively protected their claim (which can include registering, but is not limited to), then I believe they have no case.

    The copyright issues may be more complex, but you cannot simply copyright just anything. I once tried to copyright a logo that consisted of type intersecting a circle (in a certain way, of course) and the claim from US Copyright Office came back denied. So, some stacked type? Good luck with that!

    If anyone is interested, here is a blog post I wrote for my students (no longer teaching) a few years ago. It has some great links in it, which is why I’m referring to it. I think designers really need to have a basic knowledge of this stuff.

    http://avt498.wordpress.com/2009/10/27/intellectual-property/

    Also, in the AIGA standard contract, there is language that addresses the logo and trademark issues. I use this in my own contract.

    “IP 1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.”

    Good luck!

  11. David Day

    As an ad agency owner for 17 years, I’ve been down this road. First, intellectual property is difficult because it’s quite subjective. The TX organization does not necessarily have to TM or SM the logo. If they can show they used the logo before you used yours (as in an ad or some other documented source with a date) then they will likely win a trademark battle. However, things that will be considered in trademark decisions include: market location (does your food coop do business at all in TX and do they do business where you are?) similarity of trade (do they do what you do, or even close?) and similarity of mark (how close in look are the two marks) among others. As for trademark search, I give the client an option, and charge for it if they like. They can sign a disclaimer if they do not want me to perform the search. Many times with smaller orgs and non-profits, they don’t have the resources to pay for it, but there are some basics they should cover as you’ve mentioned: Secretary of State in their home state is the first place to look for similarities. Finally, I like to play it safe. A couple of grand for a TM search is a lot of money, but it can save you and your client a lot more in the long run. Best practice: deal with the question in advance. Hope that helps.

  12. Diane

    I use to work for a law firm in the I.S. Department for over 20 years and I am now a designer. In my experience with the legal field, I have never seen a lawyer have someone express concerns for them. If there was a real issue, you would have received an official letter from the lawyer him/herself stating to cease using the logo before taking you to court about it.

  13. Trey

    (I’m an artist, not an attorney.) Next time you do an agreement for logo work, make sure you include a indemnity clause which should free you from responsibility should it come to litigation. Personally, I believe, and I could totally be wrong in thinking this, that the company needing the logo/branding should take it to their lawyers before calling it their own. Of course, we should research and do our best to create original work, but it seems odd for an artist to be held responsible for making sure a logo satisfies legal obligations. If that were the case, then we should be tacking on lawyer fees to our design invoices.

    When it comes to infringement, (again, I’m not a lawyer) it is my understanding that if one logo can be mistaken for the other then there is a problem. “The font, a large exclamation point, and stacked text”, different state, different industry……I’m not sure that’s enough for litigation. If I were you/the client, it would be worth your/their while to speak to an intellectual property lawyer. It will give everyone piece of mind.

  14. Fernando

    In Mexico there is a government office in charge of protecting intelectual property. You can pay an amount (about $ 200) to conduct a search for images/products that could be too similar to impede registration. If the search provides no results, then you can procede to register your logo or product, transfering later the rights (not the intelectual property) to your client.

    Of course, many would not do this, and we have plenty examples of blatant copies.

    In this case, I would consult with a lawyer…

  15. mike williams

    Some great advice here. In my experience, I’ve found a few things:

    As due diligence, I believe we designers should always do our own quick searching as part of our process before we present any “finals” to senior decision makers, to ensure we’re not caught in embarrassing situations. (I wouldn’t even mention to the client that you’ve done this – as you don’t want imply you are taking on any liability of having said “yes I cleared this myself”.)

    When I do my own research, I have found Logolounge is not nearly comprehensive enough to CYA, but a good place to start along with others – especially like Google reverse image search and tradmarkia.com. A trick that sometimes works: hide any word marks, then ask a few friends what type of company they think the logo is for. If you hear a few people say “it looks like a tech company” or “an energy company” (etc) search through tech or energy company logos… their subconscious is probably remembering something similar in that industry.

    I believe we as designers have a responsibility to ensure our processes result in a custom solution for the client. We should always recommend clients have a professional trademark attorney do a final search, but I would avoid anything that implies I approve or oversaw the search. With the proliferation of logos, there is always something similar in some way… lawyers will uncover the amount of risk a logo has, then it is up to the organization (maybe the lawyers, maybe the clients – certainly not us designers!) to decide if that amount of risk is acceptable. (Because of this degree-of-risk result, I’ve have sometimes heard “we’re not comfortable with that” rather than “yes” or “no” though never from someone else’s legal team! I can only hope they were trying to match the friendly tone Illise sent in her note instead of jumping straight to the legalese.)

    As Illise puts, this will continue to become an issue as more and more logos are so easily created, and distributed globally. (You can already see a trend in smaller organizations to use busier/more custom logos to build distinction. Big enterprises can get away with more generic shapes/colors or names since they have the money and legal muscle to back it up.) This proliferation and trademarking will especially be an issue for designers who sell logos inexpensively… clients can’t justify thousands of dollars in legal fees for a $300 logo. I highly suggest discussing all costs and ramifications of a logo design up front, and ensuring clients understand cost of a logo is a small part of their overall outlay of branding/rebranding, and even legal fees are small compared to how much it will cost to implement this logo by printing up new stationery, signage, graphics etc.

    Additionally to CYA: If you manage logo designers, be sure you have check-ins with them often enough to see the evolution of ideas from inspiration through finals, to avoid someone being a bit too “inspired” by someone else’s work. Take pictures during crits – it serves as great documentation and clients love seeing the process when you present the finals! Be especially aware of freelancers who shop the same ideas around to many agencies – this happens a lot.

    If you are a freelancer or logo designer, be sure you keep a comprehensive provenance
    of logos you design, including a list of any places you’ve posted the work online and (if your contracts retain ownership of unpicked work and you repurpose that work or similar ideas) any agencies or clients you’ve shopped the work to. This is HUGELY valuable to you and a potential point of differentiation when you are looking for work.

  16. Ilise Benun Post author

    Great conversation, everyone, and thanks especially to those contributing resources and experience you’ve learned from.

    In response to the request to see the logos, we don’t have the rights to show them. Plus, I agree with Melanie, I think it would turn the focus away from the main issue, especially because it’s so subjective.

  17. Chandis

    Two different businesses in two different geographic locations. Stick by your client. If a logo is TM or ® the owner must take reasonable steps to protect and defend that mark.
    Typical legal departments have no clue when it comes to TM law. I would call their obvious bluff – continue – and let the other company attempt to defend their Texas company’s logo.
    PLAN B: Change or alter your logo slightly. Then, over time, phase it in to eventually replace the original. (An improved upgrade so to speak.)
    MORAL OF THE STORY: Be as unique as possible. Almost all of the simple logo designs have already been done by someone. And it is the client’s responsibility to take steps to protect their logo design by registering it and defending it.
    Good luck all!

  18. Robert

    I would go with a follow-up letter to the Texas co. Asking if there was anything specific about the design that could be modified which would allow the fore mentioned company to use the logo. Additionally, find out who designed the logo and ask them how they came about the design., they may have used a product of your previous designs which may give you more entitlement and give you leverage if you need additional tools to mediate. A upside to this is you just placed your skill set on their radar. Could mean future work…Lucky you

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  20. Stan Your Photo Coach

    That is a sticky one! There are a few prepaid legal companies out there and for about $30/month, (cancel any time), You can ask a lawyer as few questions a month and get either free help to a certain limitation, or a pretty good discount on further legal help. In a case of “similar” logos, I would rather be legally safe than sorry!

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