914.1 Copyrightable Authorship in Trademarks, Logos, and Labels
A visual art work that is used as a trademark, logo, or label may be registered if it satisfies “the requisite qualifications for copyright.” 37 C.F.R. § 202.10 (B). The authorship in the work may be pictorial, graphic, or in rare cases sculptural, or the work may contain a combination of these elements. When reviewing an application to register a trademark, logo, or label the U.S. Copyright Office will examine the work to determine if it embodies “some creative authorship in its delineation or form.” Id. § 202.10 (A). However, the Office will not consider whether the work has been or can be registered with the U.S. Patent and Trademark Office. Id. § 202.10 (B).
The copyright law covers the creative aspects of a pictorial, graphic, or sculptural work, regardless of whether the work has been used or is capable of being used as an indicator of source. Unlike trademark law, copyright law is not concerned with consumer confusion and a trademark, logo, or label may be eligible for copyright protection regardless of whether the work is distinctive or whether consumers may be confused by the use of that work. In other words, a visual art work may be distinctive in the trademark sense, even if it does not qualify as a work of original authorship in the copyright sense.
The Office typically refuses to register trademarks, logos, or labels that consist of only the following content:
• Mere scripting or lettering, either with or without uncopyrightable ornamentation.
• Handwritten words or signatures, regardless of how fanciful they may be.
• Mere spatial placement or format of trademark, logo, or label elements.
• Uncopyrightable use of color, frames, borders, or differently sized font.
• Mere use of different fonts or colors, frames, or borders, either standing alone or in combination.
• Lori Lewis submits a logo consisting of two letters linked together and facing each other in a mirror image, and two unlinked letters facing each other and positioned perpendicular to the linked letters. The registration specialist will refuse to register this work because letters alone cannot be registered, and there is insufficient creativity in the combination and arrangement of these elements. See Coach, Inc. v. Peters, 386 F. Supp.2d 495, 498 (S.D.N.Y. 2005).