Can I Trademark a Well-Known Symbol?

Trademarks are everywhere…you see them on a Pepsi bottle and Adidas t-shirt, you hear them when listening to the NBC chimes or the roar of the MGM lion, and you even see them when you read the name of a famous celebrity like Julia Roberts. Trademarks are distinctive words, names, symbols and sounds that are important in marketing a specific product or service and, therefore, are protected under trademark law.

So what happens if you want to use a well-known symbol, such as a peace sign, as part of your logo? Read on to find out!

The Short Answer

Probably, yes. As long as no one owns the copyright on the particular manifestation of the symbol, you can incorporate your version into your trademark and protect it from other people using it in commerce.

A Bit of Background

In order to understand the answer to this question, let’s first address the difference between copyright law and trademark law. The purpose of copyright law is to protect creators from other people attempting to benefit monetarily from using the creator’s work. At a very basic, almost philosophical level, every image, design, or creative work that exists was originally created by someone, and by default that someone–the author–is the owner. Even if the idea itself is not new, such as a five-pointed star, the specific rendition of that idea is a unique creation which creates copyright protections for the creator.

Trademark law, on the other hand, is about brand and source protection, not authorship rights. The purpose of the trademark is to allow consumers to associate the product with the the source of the product (or service) bearing the mark (i.e., minimizing the impact of counterfeits).  Here too, as long as the mark satisfies basic requirements about distinctiveness, and has not been previously registered with the USPTO, it may be trademarked.

This question brings up an interesting interplay between copyright law and trademark law. If someone else owns the copyright to a specific creative work, you cannot use that as your trademark because you are infringing on their copyright.  Otherwise, the mark may well be fair game.  After all, Nike didn’t exactly invent the checkmark. 

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