If I used a logo that I found online for my business logo but another business has a similar logo, do I need to file a trademark?

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If I used a logo that I found online for my business logo but another business has a similar logo, do I need to file a trademark?

I found another company that has this logo, although we sell entirely different products. I haven’t been able to find a trademark for their logo. Also, I didn’t copy their logo exactly; I changed some dimensions slightly and recreated it.

Asked on July 18, 2014 under Business Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Even without a filed trademark, a business can have trademark protection in its logo if that logo meets the correct criteria (e.g. is original, distinctive, identifies the source of products or services, etc.) and the company asserts that it uses the mark as a trademark.

In terms of trademarks, the first one to use the mark in commerce generally wins--filing date is much less important.

Therefore, if the other business has a similar  mark which you copied in any way (such as changing dimensions "slightly and recreated it") and they used that mark before you (which is probably the case, if you found it out there  and copied it), you may be violating their trademark. The fact that you apparently sell different products may help, but it depends on *how* different, whether a company selling the one kind of product may also reasonably sell the other (since trademark identifies source of goods, if one company could reasonbly source both products, their could be a violation), and other fact specific issues.

You also may be violating their copyright, which would inure in any original work and which prohibits others from modifying or adapting that work.

In short, if you modified, adapted, etc. another's mark which existed and was being used before you found it, you  may be violating their intellectual property, and trying to file for protection or registration now will not help you.

If you are not very attached to this mark, find or create another; if you are, then consult with an intellectual property attorney to evaluate if, under your exact circumstances, you can keep using it and how best to protect it.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Even without a filed trademark, a business can have trademark protection in its logo if that logo meets the correct criteria (e.g. is original, distinctive, identifies the source of products or services, etc.) and the company asserts that it uses the mark as a trademark.

In terms of trademarks, the first one to use the mark in commerce generally wins--filing date is much less important.

Therefore, if the other business has a similar  mark which you copied in any way (such as changing dimensions "slightly and recreated it") and they used that mark before you (which is probably the case, if you found it out there  and copied it), you may be violating their trademark. The fact that you apparently sell different products may help, but it depends on *how* different, whether a company selling the one kind of product may also reasonably sell the other (since trademark identifies source of goods, if one company could reasonbly source both products, their could be a violation), and other fact specific issues.

You also may be violating their copyright, which would inure in any original work and which prohibits others from modifying or adapting that work.

In short, if you modified, adapted, etc. another's mark which existed and was being used before you found it, you  may be violating their intellectual property, and trying to file for protection or registration now will not help you.

If you are not very attached to this mark, find or create another; if you are, then consult with an intellectual property attorney to evaluate if, under your exact circumstances, you can keep using it and how best to protect it.


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