Taking a trade mark on your brand is part of the advertising process to protect your brand from competitors. A quick and dirty way of diverting traffic from a competitor is to purchase their name or brand as an AdWord and enjoy the traffic rolling towards your own business. This is of course not news in the internet game but worth considering given that the problem is reoccurring.  The ways in which third parties use third party brands as keywords will continue to evolve.
There are many interesting legal issues to ponder in connection with challenging third party use.  Is the AdWord use of a trade mark for the purposes of registered trade mark infringement?  Is this use in the course of trade? If a cause of action exists, traders should certainly consider making demand on the advertisers setting out the claims and making demand to cease further use.  However, where possible, the quickest and cheapest resolution may be to make a complaint to Google. Google’s present policy is to make available competitors’ trade marks as AdWords worldwide, unless a complaint is received.
In some situations Google will investigate the trade mark and its use before making a determination to remove the trade mark as ‘ad text’ or ‘keyword’.  However, Google has different policies depending on where the trade mark owner is based. Google will not prevent the selection of trade marks as keywords.  Limited investigation as to whether a keyword (in combination with particular ad text) is confusing as to the origin of the advertised goods and services eg ad falsely implies affiliation with the trade mark owner. Fortunately for Australian trade mark owners,  Google will currently investigate and possibly remove registered trade marks used by a third party in both its keywords and ad text.
This entry was posted in industry news & trends, interesting observations, marketing process optimisation and tagged advertising process, Darren Woolley, google adwords, marketing process optimisation, registered trademarks, strategic marketing consulting, strategic marketing management, trade mark, TrinityP3. California Attorney representing artists, musicians, designers, and businesses looking to turn creativity into profit.
Why do big companies like, let’s say Yahoo!, bother registering their trademarks with the federal government? You’ve likely seen  those little marks that appear next to logos, brand names, slogans and the like. Trademark Registration puts others on notice that your trademark already exists, deterring them from using a same or similar brand name to yours. Trademark Registration proves ownership a trademark which helps prevent infringement and eliminates that hurdle in a trademark infringement suit. Along the same lines, Trademark Registration allows you to prevent importation of infringing products into the United States. Trademark Registration gives the ability to fast track registration in many foreign countries , providing greater protection for your brand. This entry was posted in Articles & Resources, News, Trademark Law and tagged registration, trademark, uspto. Hello, please give me a call if you would like to discuss your legal matter so we can determine your options and the best course of action given your specific situation.
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A logo is usually not just protected as a registered trademark, the artwork itself is subject to copyright. So in this case, while it might not be a trademark problem, copying the logo would be a blatant copyright infringement. However, if the original company had bought their logo on a stock agency website (it does happen, I think the Twitter logo was originally bought on iStock for instance if I remember correctly), you could just license the same image for your own company. Copying anything in its entirety should be off-limits, whether it’s design, writing, or any form of intellectual property.


And, you want to protect yourself from lawsuits, or associating with clients who could potentially be sued.
As Miles says, there is also the option to pursue an action in civil law through the tort of passing off, designed to protect business reputation.
Even if it’s not a direct infringement, a company can still sue for diluting their brand. In university they teach us never to copy even a single line from someone else’s artwork. What I was hoping to get information on was how do other Designers add in the trademark search into their logo design process. Throughout my undergrad and MA in graphic design this was not something that was covered, the design, client relationship and all processes involved. If you are a designer, you should probably refer the client to their own lawyer, rather than providing advice directly.
We’ve acted in good faith, designing from scratch, and making our best efforts to be original in our design.
I am a UK-based trade mark lawyer and I have to suggest that you take advice from a US trademark attorney about this issue. As I read your comments, it could also be true that you have (already) alienated your client somehow. Hi Tracy, I’ve never had a client ask for the terms to be changed after work has started.
Regardless of the trademark issue, copying a logo have implications that goes way beyond the area of the market in which an specific brand operates, especially if this is well known and fully recognisable.
Some people mistakenly believe that this is the shortest way to top of mind awareness for their brand.
Stay away from ignorant clients like this ones and if you can’t afford to dismiss the client you should still make a stand for your professionalism and ethics.
Don’t ever let a client pressure you into eliminating trademark indemnification language from your contract. These two symbols do not offer legal protection, but they do tell other people that you claim ownership of that word, name, or logo.
You do not have to get permission or file any paperwork to use the trademark or service mark symbols. If you would like more information about the trademark, service mark, and registered trademark symbols, visit the United States Patent and Trademark Office website.
But in this guest post from the team at 1Place Patent Attorneys & Solicitors, it appears your trademark may not completely protect you from competitors using your trade mark as a Google AdWord, unless you are willing to defend it. Your brand is being used as an AdWord by a third party trader and entering this as a search term triggers a sponsored link. If we find that it is confusing, we will remove the specific ad that is the subject of the complaint. A Problem Solver, Negotiator, Founder & Global CEO of TrinityP3 - Marketing Management Consultants, founding member of the Marketing FIRST Forum and Author.
Now that my name is a registered trademark, there is someone who is using my name in his google adwords to direct business to his website. Here in Europe you do not even have to register artwork, it is copyright protected the moment it is created.
Statutory damages for that go up to $150 000 in the US if the copyright holder decides to sue.
If there is no trademark protection on the logo in your category, it would probably not be a problem.


You could research it yourself, rather than rely on someone else who said they did it, which probably means they found a blog that said it’s ok. The company could be sued for infringement if the design and products are sufficiently similar and the mark is registered. There you will find countless examples of designers who felt that borrowing or taking another mark was a-ok.
So in this example, food products and alcohol may be sufficiently similar for there to be a problem, particularly if the marks in question (i.e.
Surely much better for a designer to flex his or her creative muscles and come up with something original?
After you have finalised concepts do you then conduct your search on the Trademark registration sites?
However, the client has international reach, and therefore more potential trademark conflicts, and has asked us to remove all trademark indemnification language (protecting us) from our contract, and has asked my company to assure them they will have no trademark infringement problems with the design if they go forward with it. Maybe it wouldn’t hurt to have both our lawyers look into it, though more expensive of course. Perhaps the client was aware of one or more of the existing logos, even though you were not. He is also a Past-Chair of the Australian Marketing Institute, Ex-Medical Scientist and Ex-Creative Director.
But I’m no expert, so if you plan on doing something like that, make sure to consult an IP lawyer. Even if there’s no law against it, the fact that you copied work would be embarrassing, unethical, and could hurt you professionally.
Something a designer needs to be aware of is that such an action could lead to vicarious liability, which isn’t a position you want to find yourself in.
This website brings great light into a dark secret of many hack designers or companies that don’t understand what it means to be original from the start. If they’re better established in size and finances, they can still bankrupt you and your client in the process. If the client continues to insist, you have to explain to him that you can create something with a similar look and feel, then just copy the whole thing because he’ll be sued by law.
We’re on an extremely tight deadline set by the client, where the logo needs to be rolled out in a few weeks at a trade show.
I think they’d simply prefer to keep all liability with the vendor (us), and are being risk-averse. You can see my terms here in case they help, and there’s a bit about indemnity toward the bottom. There you have to be a sharp designer to maybe use colors, shapes, and at the same time keep your own identity.
Is it reasonable for a client to expect a design agency to totally indemnify them from potential trademark issues?
The dilemma with the deadline is that if an attorney warns against the design, we will lose too much time to be able to have materials ready for the trade show. The key question is whether consumers are likely to be confused between the origin of goods sold under one trade and those of the other.



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