Trademark law protects a company’s good name and reputation

Registered symbol in gold (3d)

A logo can represent a company’s good name

A logo is often one of a company’s most valuable assets. A logo mark may represent the company, its image and reputation, or the reputation of its products or services. Many logos are protected by trademark registration. Many more benefit from trademark protection without registration. Because a mark may be such a valuable asset, many companies have branding guidelines in place to carefully control the use of company logos.

It’s a given that a company’s logo should appear prominently in its signage. But what should a sign maker do if a sign buyer orders sign work featuring logos that it does not own? Should sign companies act as trademark police and require proof of permission before they put a logo on a sign? Most do not. They simply produce the work in good faith, assuming that the sign customer is not infringing by displaying the logo, though many sign shops, when asked to place a national logo on sign work, make an effort to obtain branding guidelines from the sign buyer or the national chain.

Occasionally, a retailer will say, “We didn’t ask permission to use their logo, but we sell their product so it will be okay to use it.” The retailer reasons that he or she is giving their supplier free advertising—and who would object to that? In reality, the use of a protected logo without permission constitutes infringement. And rather than viewing the display of its logo as free advertising, the company owning the mark may be more concerned about how its good name and reputation might be affected by unauthorized use. Why so?

Here is a purely hypothetical example. A siding company believes it would be a selling point to put the Alcoa logo on their signs since they use Alcoa aluminum products. So they order signs with the Alcoa logo on them. Alcoa later contacts the siding company and tells them they are not allowed to display the logo on their signs and to remove it. They explain to the contractor that, while they appreciate his loyal business, his use of the logo without permission is trademark infringement.
Why might Alcoa not view this as desirable free advertising in this fictitious scenario?

Trademark law protects a reputation by preventing confusion

Trademark protection is designed to prevent confusion among consumers. Alcoa may have no desire to be in the siding installation business, but the sign with Alcoa’s logo could give consumers the wrong impression that it is in the business,
And what if the siding company does shoddy work? The improper use of the logo on the sign could conceivably tarnish Alcoa’s reputation or the reputation of its products. It may have taken many years of aggressive marketing for Alcoa to develop a respected name in the aluminum products industry, and protecting this good image may be a high priority for the company. So trademark protection can serve to help protect the good name of a brand. Further, if a siding company has a customer that is unhappy enough, the customer may decide to start a lawsuit, even naming Alcoa in the suit, since the Alcoa logo appears on the siding company sign.
Consequently, Alcoa avoids this whole bundle of problems by simply not allowing their logo to be used on siding contractor signs. Alcoa may feel that the small amount of advertising the sign gives them is not worth the potential problems. So it may prohibit the use of its logo in a siding contractor’s advertising. Of course, this story is hypothetical and may not represent Alcoa’s actual policies, but it may illustrate why a large company would be selective about how its trademarks are used.

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It’s true that many people, including a well-intentioned siding contractor, may view this as a case of a large corporation using a ‘big stick’ unnecessarily. But that’s because most people don’t realize the potential danger to a trademark of allowing even small infringements to go unchecked. Trademark protection, for it to stay in force, requires watchful management. Trademark protection for a mark may live or die depending on how vigilant the trademark holder is in defending it. The government has put the responsibility for policing infractions squarely on the shoulders of the trademark owner. There are no ‘trademark police’ provided by the US Patent & Trademark Office (USPTO), or any other government agency.

Trademark attorney Erik Pelton, in a recent blog, gives this advice:

Deal with any potential infringements quickly. The more investments of time and money someone puts into using a name [illegally], the more attached to it they become and the more complicated getting them to stop is likely to be.

Erik M. Pelton, Dec 22 blog entry     Pelton is not only a patent and trademark lawyer, but also a former examiner for the USPTO.

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Think twice before stacking letters vertically

02h62732Vertically stacked letters, a common treatment a century ago, is not a preferred layout technique for sign work.

Though sometimes requested by clients, stacking letters vertically is not only awkward-looking but it compromises legibility. As explained by typographer Ellen Lupton in Thinking With Type, “Roman letters are designed to sit side by side, not on top of one another.” If it is necessary to stack letters, they should be all capitals. Lower case letters treated this way take on a precarious look that is visually unappealing. It also helps to carefully adjust the centering optically of each letter.

A simpler and more readable solution for a narrow vertical format is to rotate the entire line of text. A vertical axis is thus achieved, but the natural relationship of the letters sitting on a common baseline is preserved.

Does this mean that letters should never be stacked? No. In fact, sometimes this treatment is an easy way to achieve a retro look. But it should be used judiciously and with an awareness that it can limit readability.

 

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Ellen Lupton is a designer and educator, and the author of several books on design.    Thinking With Type by Ellen Lupton (second edition)

The peril of overpromising

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There were two different business owners, with two different philosophies on promising deadlines.

The Promiser

The first one, the Promiser, tried to accommodate everyone’s needs. If someone needed a job done the next day, he rarely said no. If someone requested a job be done in three days, he said okay. If they needed it in two weeks, he told them, “No problem.” If instead, a customer simply asked when a job would be done, he gave them a completion date based on how quickly he thought he could get it finished. Some customers didn’t ask for completion dates. They just approved the job and said, “call me when it’s done.”

But problems arose for the Promiser when things didn’t always go as planned; if due to unforeseen factors, a job took longer than anticipated. Sometimes a supplier was late with a delivery, or a mistake was made in production requiring a re-do of part of the job. Or an employee became sick. So a deadline that at first seemed within reach was missed. In an attempt to placate an irritated customer, an unplanned free delivery was made, adding yet more time to the job. But the problems did not end there. The late job bumped other jobs that were in line waiting to be done, annoying more customers. If one of them was angry enough, that job was moved to the front of the queue and marked “hot.” And what about the customers that just said to call them when the job was ready? Their jobs were repeatedly delayed. Deadlines were missed frequently, and because jobs were often rushed in an effort to catch up, more mistakes were made. Jobs came back almost weekly for correcting or remaking. Occasionally, jobs were even sent out with known mistakes just to avoid missing the promised deadline. (The business owner reasoned that he was gaining breathing room to get other things done before the customer noticed the mistake and returned).  In his mind, the owner felt he was doing his best, even bending over backward for his customers. Still, he developed a reputation for not respecting deadlines. A reputation that he could never quite overcome.

How was this person able to survive in business? He had two things going for him. First, he was one of the cheapest in town. He regularly asked customers how much his competitors were quoting and he tried to undercut them much of the time. He developed a reputation for low prices that kept customers coming back who otherwise would have gone elsewhere out of frustration. Some customers, wise to his overpromising, called frequently after ordering to check on the progress of their jobs. They learned from their past experience with him that he serviced the ‘squeakiest wheels’ ahead of others. So, they squeaked.

The second factor in his favor was the tremendous size of the market in his area, providing a constant influx of new customers attracted by his prices. He lost many customers due to missed deadlines, but they were constantly replaced by new ones.

The overpromising by this business owner created additional problems beyond missed deadlines. Employee moral ran low. When some workers discovered that the owner often blamed his missed deadlines on his workforce, they became frustrated and resentful. Employee turnover was significant. In an effort to reduce mistakes and expedite jobs, the owner habitually micromanaged workers, constantly looking over their shoulders, making decisions for them on even minor matters of production. He constantly asked for progress reports, looking for ways to hurry jobs along. In an effort to save time, and because he “didn’t want to spend all day writing,” the owner frequently produced job orders lacking crucial information, preferring instead to give extended verbal instructions that were not always perfectly remembered. This resulted in more mistakes and more missed deadlines. The owner was not a bad person but, under the pressure, he often became rude and critical and was rarely patient with employees. Moral sank even lower.

 

The Hardnose

The Hardnose was not a bad person, either. Actually, she was a smart businessperson. She tried to accommodate clients’ deadlines just as the Promiser, but with one major difference in procedure. She always—always—generously padded her time estimates. If she thought the job required five days, she never told the customer five days. She told them seven or eight, or more, and she didn’t budge. If she knew she could do a job in two weeks without a problem, she told the customer three weeks, even if they said they needed it completed as soon as possible. She was hard-nosed about giving herself wiggle room. She assumed, correctly, that something would go wrong on a job as often as not. If on the other hand, the job was completed ahead of schedule, as it often was, she sometimes, but not always, called a client to report that the job was finished early. She developed a reputation for never being late. The result was that she was in demand and she was able to charge a higher rate than the Promiser. Yet she worked no harder than he did.

It seems that the Promiser was in constant fear that a competitor would give his customers a better turnaround time. So he rarely said no to a request. His efforts were all focused on landing the job, after which he concentrated on getting it done in time. The Hardnose was motivated by fear, too, but not fear of losing a job. She feared for her reputation, and she was willing to turn down work to protect it. In the end, customers trusted her. Her word was golden. The cushion of time that she gave herself when scheduling produced an additional cushion, one of goodwill with her customers. In a recent blog, marketing expert and author Seth Godin made the observation that this cushion of goodwill is like a form of “overdraft protection” for your business. The cushion can save your reputation when you occasionally fall short on a promise, which inevitably happens.

The Hardnose invested in overdraft protection, both in scheduling and in customer trust. The Promiser did not. He took too many chances. And his “insufficient trust fees” hurt him.

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clipart by Johnny Automatic

Why white looks bigger than black —the Irradiation Illusion

The term irradiation illusion  was coined by German scientist Hermann von Helmholtz in the 1860s to describe the visual perception in which a light area appears larger than an identically-sized dark area. The effect was observed as early as the time of Galileo, who refers to it in his observations of the sizes of planets when viewed through a telescope at different times of day. The illusion is illustrated below. The white square in the black field on the right seems larger than the black square in the white field on the left. It’s as if the white area on the right spills outward beyond its edges into the surrounding black. At the same time, the white field on the left appears to encroach upon the black square making it shrink.

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The drawing below shows how the irradiation illusion can affect lettering. The top halves of the letters shown are clearly bolder looking than the bottom halves. This means that, on a dark background, a white letter with a heavy stroke will look even heavier, sometimes to the point that legibility is compromised. Counter spaces that are already small become even smaller. Interletter spacing shrinks. Heavy white lettering on a dark background can take on an unpleasant bloated look, and the effect is more pronounced as the viewing distance increases. The solution, simply, is to use lighter stroked letters and increase the letter spacing when the background is dark.

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This phenomenon of white letters appearing heavier is not always a bad thing. The effect can be put to use at times. It can even save an otherwise weak layout. How so?

Put the Irradiation Illusion to good use

Computer font collections tend to have a disproportionately high number of light faced letter styles. These typestyles are designed mostly for print, not for signs. Times Roman, as an example, is an inherently weak letter style on sign work. It looks fine in print, up close. After all, it was designed for newspapers held at arm’s length, paper whose porous qualities actually help thin-faced letters. Paper, especially newsprint, allows inked letters to bleed a little through capillary action (the printer’s term for this is dot gain). This effect allows the hairline strokes characteristic of many romans to achieve a little more thickness when printed. But in large sizes on signs, the thin strokes of painted or vinyl lettering remain thin lines. Add to this thinness the effect of the irradiation illusion, and the strokes become even thinner. The result is that a large sign lettered in all Times Roman has a distinctly anemic look. In printspeak, the lettering is not ‘black’ enough. It appears insubstantial, weak. The thinnest strokes eventually disappear as viewing distance increases, leaving visible only a series of meaningless vertical strokes. But if you create a reversed color scheme—putting white roman letters on a black background—the letters instantly become a little stronger.

Similarly, the legibility of some scripts can be improved by a dark background. Computer scripts are often so light faced as to be useless for sign work without some kind of ‘stroking’ to beef them up. Using a dark background can sometimes solve the problem with minimal effort.

Before computer fonts

In the days of painted signs, the expanding/shrinking illusion of irradiation was a problem easily addressed. For one thing, sign painters did not use fonts [related post:  Sign painters didn’t use fonts], so they were not burdened with picking through hundreds of unusable typestyles to find the few that worked well. Their letter styles, “alphabets,” as they called them, were all hand drawn specifically for sign work. Generally, these styles were not duplicates of typestyles that were created for print. And letterers tended to rely on medium and medium-heavy stroke weights for the bulk of their work. When a light typestyle was required, say, by an insistent client, or when an architect specified a certain typeface, it was easy to thicken the strokes slightly if needed for legibility. This could even be done on the fly during the brush lettering process. When a sign painter used script, it was most often a medium weight, sometimes heavy, infrequently light. Experienced sign painters knew that light faced lettering often produced weak-looking signs that lacked impact.

Good design is rarely accidental

In sign design, legibility is dependent on the interplay of light and dark images. Letter recognition relies not only on the positive image of the letterform but also on the negative space surrounding and within it. When one or the other is overpowering, there is always a compromise of legibility. This is why medium weight letters tend to be the most legible on sign work. It doesn’t mean heavy or light faced letters should not be used at all. Rather, it means using them prudently.

Being aware of, and carefully manipulating, effects like the irradiation illusion can help a sign artist produce good layout. Effective design is not an accident.

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My inspiration for this article is an archived blog by UK designer and typographer Jon Tangerine from 2010:    jontangerine.com

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Hermann von Helmholtz

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Hermann von Helmholtz bio in brief.    from famousscientists.org

Hermann von Helmholtz bio   from Encyclopedia Britannica. His pursuits as a scientist were broad. Perhaps best known for his invention of the ophthalmoscope in 1861, still an essential diagnostic tool used in medicine today.

Hermann von Helmholtz   from the Stanford Encyclopedia of Philosophy. Details of his interests, philosophies, teachings and accomplishments.

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Can you trademark a color?

 

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Yes, US trademark protection can be obtained for a color or color combination, though it is not commonplace.

United Parcel Service, for example, owns brown as a color mark in the transportation and delivery industry (reg. no. 2901090). This doesn’t mean that no other company can use the same brown. But it does mean that no other company in the field of transportation and delivery can use brown—for delivery trucks or other trade dress.

The purpose of trademark protection is to prevent confusion among consumers. When a brown delivery truck pulls up and a driver in a brown uniform gets out, most people assume it’s UPS, not Fedex or another delivery service. The brown color has become so associated in the minds of customers with UPS that it has become a distinguishing mark for the company, though it has not always been so. That’s why early efforts by UPS to register brown as a trademark were not successful. It took time, and aggressive marketing, for brown to acquire meaning for UPS. In trademark law, when a mark acquires meaning that it did not have in the first place, it is said to acquire “secondary meaning.” This acquired secondary meaning has allowed UPS to apply for and receive trademark registration for brown.

Similarly, Owens Corning has been granted several trademark registrations for the color pink for insulation, adhesive tape and other construction-related products (reg. nos. 1439132, 2090588, 2380445, 2380742, 3165001). 3M has a trademark for canary yellow for PostIt notes, and in the telecommunications industry, T Mobile has a trademark for magenta.

To qualify for trademark protection, a color cannot be “functional.” That is, the color cannot be essential to the use or purpose of the product or service. This is why Deere and Company was denied a trademark registration for green in the early 1980s. There are many makers of farm and garden equipment. Should only one of them be allowed to paint their tractors green? It seems reasonable that green, the color most commonly associated with plants, gardens and farms should not be owned exclusively by one farm equipment company. It would seem to be an unfair advantage in the marketplace. On the other hand, specific combinations of green and yellow for specific applications have been registered by Deere. A green tractor body with yellow wheels, for example. Or a green harvester with a yellow stripe. multiple2

 

Links:

Blog article by Susan Perera   The struggle of Deere and Co. to trademark color.

Chinese court awards trademark victory to John Deere  This decision marks the first instance in China of a trademark litigation based on colors. The infringer was a heavy equipment company based in Beijing. Deere was given injunctive relief and awarded 450,000 yuan in damages.

 

A paper by Belinda J. Scrimenti for the American Bar Association Section of Intellectual Property Law’s 27th Annual Intellectual Property Law Conference in Arlington, Virginia. The pdf found on this page contains a short, but fascinating, history of trademark litigation regarding colors.

 

 

 

 

 

 

 

 

 

clipart by Freepik.com

 

 

A trademark registration is not always about protecting a logo design.

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Often, in the  US, a trademark registration is for the wording only rather than the design of a logo. The terminology used for this type of mark on a US Trademark application is “standard character mark.”

A registration for the design of a logo would be a separate application. What is the difference between the  two types of registration? Which is better?

Standard Character Mark

A registration for a standard character mark covers all variations of the wording that you want to protect. It covers the wording in any letter style and any color or size. That means it covers the wording if it’s part of a logo design, too. In other words, a standard character registration is more comprehensive than a registration that is for only the design of a logo, because it covers all forms of the wording (including its use as a domain name).

A design mark

On the other hand, a trademark registration for the design of a logo applies only to the exact design as it appears in the drawing that you send with the application. So, what happens if you want to change the design later, or add or remove a word? You will have a problem, because you will be required to apply for a new trademark registration. In effect, then, a registration for a standard character mark may be stronger, more versatile, than a registration for a design mark.

Why not register the wording of a logo as a trademark and its design as a copyright? Because, so often, a logo does not qualify for copyright protection in the US.  [see related post:  Can logos receive copyright protection?]

Consequently, many trademarks are protected by two trademark registrations, one for the wording and one for the design. You may even see two registrations just for the design (one in color and one in black and white). If you want to apply for only one trademark registration to save money, an attorney may advise registering a standard character mark rather than a design mark. There are more infringements related to words than to designs. Sometimes, though, a particular word mark may be considered “weak,” so that protecting the design may take on greater importance. Again, the advice of a trademark attorney can be valuable.

The ideal, of course, is to protect both wording and design by separate registrations, though it’s more costly.

 

Links:

USPAT page explaining character mark versus designed mark   This link is to a government page and has some illustrations.

Law 4 Small Business   This post is by attorney David Ferrance from 2015. Clear and succinct explanation of character mark versus design mark.

Words or Logo or Both?   A more involved explanation from the blog of attorney Eric Waltmire.

 

Letter embellishment—a little goes a long way

 

A decorative or embellished letter treatment, what printers may call a “display typeface,” can add a splash of personality. It can help support a design theme or help create a mood. But it can easily be overused and become visually tiring, especially if it is less legible, as is often true of display type or embellished letters. The guiding principle should be: a little goes a long way. Use such treatments sparingly.

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Here, a shade/outline has been artlessly applied to all the lettering on this layout for magnetic vehicle signs, rendering them virtually unreadable. The shade color competes with the lettering for attention because of its high contrast with the background. Additionally the heaviness of the shade and the tight letter spacing allow the interletter spaces to be filled by the shade. This obliterates the letter silhouettes and seriously hurts letter recognition from any but the closest viewing distance.

Heavy-handed embellishment like this is rarely successful. Perhaps it can be made to work on a single, simple word at a very large size with adequate letter spacing or a color adjustment. But it doesn’t work in this case. And combined with the use of all upper case, which further decreases legibility, and the clumsily oversized phone number, the overall effect is clearly a fail. From only twenty feet these signs appear to be a blurred indecipherable mass. If you are guessing that this design was heavily influenced by a micromanaging customer, you are right.

Sign customers—you can’t live with them and you can’t shoot them.