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Can I create from scratch a well-known logo with different colors and different fonts from the original to sell online?

Seattle, WA |

If I cannot, how do I legally fix this?

Attorney Answers 5


Depends on what you intend to do. Are you just trying to sell a logo? Or are you selling other products with the similar logo? If the latter, then it's likely that it would be trademark infringement.

As to how to legally fix it, it's unclear what you mean. If you've already done it, stop. If you are being accused of infringement, try to settle.

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Legally you fix it by not doing it. You can't seriously be proposing stealing someone's logo and just recoloring it and changing fonts, can you? Most logos are registered as word marks, which means the registration covers all fonts and colors. I am confident this cannot be fixed and is dead in the water.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

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In addition to trademark protection, the well-known logo you're recreating in different colors and fonts is likely protected by copyright law. If so, and if I understand correctly what you're planning to do, you appear to be creating a derivative work, which would be copyright infringement if done without permission from the copyright owner. It's impossible to say for sure from the description you provide (or likely any description you could provide in an online forum like this one), so I'd strongly suggest talking to a good copyright and trademark lawyer before moving forward.

The information provided here is general in nature, is not legal advice, and does not create an attorney-client relationship with Will Montague or Montague Law PLLC.

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These type of questions are very fact based. What are you copying? How much of it are you copying? And as John already pointed out, what are you using it for? And the law in this area is fairly complex. There is no substitute for sitting down with an experienced IP lawyer.

But you can some up with a pretty good rough answer just by applying common sense.

Are you copying the copyright protected elements of the logo? If someone familiar with the logo would look at your new work and would think that you copied the logo, then you may have infringed on the copyright.

Similarly, are you violating their trademark? If someone who is a typical customer of the owner of the logo would look at your logo and think that maybe the two logos were connected, that is, that maybe they came from the same company, then you may have infringed their trademark.

Another way of saying the same thing, and pardon me for being blunt, are you too lazy or lacking in talent that you can not come up with your own logo, or are you truly an artist who has been inspired by another work, but has added your own valuable creative expression?

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The Likelihood of Confusion Standard is the legal test for trademark infringement

A determination as to whether a mark is confusingly similar to another involves a two step process. First, one must look at the marks themselves for similarities in appearance, sound, and connotation, i.e., the commercial impression of the trademark. Second, one must compare the goods or services to determine if they are related or if the activities surrounding their marketing are such that confusion as to origin is likely. Similarity in one of the referenced elements is sufficient to find a likelihood of confusion. It is generally accepted that a subsequent user is precluded from appropriating the mark of another and avoiding the likelihood of confusion by simply adding descriptive matter to the other party’s mark. The goods or services need not be identical or directly competitive to find a likelihood of confusion. They need only be related in some manner, or the conditions surrounding their marketing be such, that they could be encountered by the same purchasers under circumstances that could give rise to the mistaken belief that the goods and services come from a common source.

To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:
1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
3. the strength of the plaintiff's mark;
4. any evidence of actual confusion by consumers;
5. the intent of the defendant in adopting its mark;
6. the physical proximity of the goods in the retail marketplace;
7. the degree of care likely to be exercised by the consumer; and
8. the likelihood of expansion of the product lines.
The first five of these factors are examined in every trademark infringement action. The last three factors are the most common additional factors that are considered by a court.

You can't copy someone's trademark and change only the colors and font, although in many cases two or more companies do have similar marks used in different ways. The best approach is create arbitrary or fanciful mark with strong protection. Here is a link to an article I did for the Bar Journal on the topic. I hope this helps.

This blog provides is not intended to give legal advice and is not a substitute for the same; if the reader has a concern they should contact a knowledgeable attorney.

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