The answer to this question depends on how you intend to use the mark in commerce. For example, let’s say you develop a logo or design that you and your friends really like and people are asking for a t-shirt that displays the logo. So you now plan on going into business selling t-shirts, sweat shirts, etc., with your logo design prominently displayed. But before you do, you want to make sure and protect your logo design. Is trademark the best protection?
Remember, a trademark is an identifier. The mark identifies to the consuming public the producer of a particular product, or in the case of a service mark, the source of a particular service. With use in commerce, it becomes a recognizable logo design which identifies your product or services from those products or services of others.
That’s not what the logo design is doing in our t-shirt example. You are not a t-shirt, sweat shirt manufacturer. You are simply purchasing the clothing from another source in order to display your new design. The logo design is simply being displayed on the t-shirt, it is artwork. I would therefore not advise pursuing trademark protection but instead, apply for copyright registration on the design.
If however, you have a product, and you intend to display your new logo design on the product, and/or display the logo design on the product’s packaging as well as all advertising materials for the product, that’s clearly using the logo as a trademark. With continued use in commerce, you are teaching the public that when they see the logo design on a product, or on packaging, or in advertising, that you are the source of the product. In this case, trademark registration is the right way to protect the logo design.
The exact same design logo, however, in one example copyright registration is the answer, and in the second example, trademark registration is the answer. It all depends on how you use the mark in commerce.
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