Creativity is not free

Artists and designers are driven by a passion for the act of creating. However, this does not mean we do it for free (at least most of the time!). We invest an enormous amount of time in our work in which our clients often invest a lot of money.

So, when someone comes along and blatantly copies our work or claims it as their own, we can get rather upset. For ourselves and our clients, the abuse and misuse of the ‘intellectual property’ we create can have very serious consequences for our livelihoods. But remarkably, It is not uncommon for agencies and entrepreneurs to neglect the steps required to protect intellectual property. The process is often seen as an unnecessary and expensive complexity, or something to be done later.

I have written this article to offer a few insights and stories which illustrate why (in my humble opinion) protecting your intellectual property is an important part of brand design. Full disclosure — this article is based on personal experience; I am a designer, not an IP lawyer, and I do not pretend to be an expert in this field, so when considering protecting your intellectual property, I always recommend you involve an experienced IP lawyer.

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Why is intellectual property important?

When imitation is limitation

Nothing is truly original. As Mark Twain once said:

We can turn old ideas into new, curious combinations, but they are the same old pieces of coloured glass that have been in use through all the ages.

However, this does not mean everything new is exactly the same. As he suggests, there is originality in how we rearrange ideas and style to create something unique, fresh and unexpected. It is this ‘freshness’ which has an intrinsic value and can be protected from those who seek to copy and benefit from your ‘originality’.

We often hear the phrase “imitation is the sincerest form of flattery”. Whilst that may be true, it depends on how you are imitated and the intent of the imitator. It is not always deliberate; it is possible for logos (and other creations) created independently from one another to have unintended similarities. But whether accidental or deliberate imitation can diminish the value of your original idea.

As the journalist and author Arthur Koestler once wrote:

The more original a discovery, the more obvious it seems afterwards.

I would add “and the more desirable it becomes”.

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What is intellectual property?

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

Mark Twain rightly suggests that copyright law is complex, but the basic principles are not.

Intellectual Property is a legal framework, designed to protect the rights of the originator of a work and by implication the owner of the copyright or trademark. It recognises ownership and offers opportunities to seek change, compensation or damages from those who wish to exploit the work. IP can be regarded as private property, like a building or a car – it can be bought, licensed, sold and protected by law.

It is a term of reference for ‘creations of the mind’ and can include; inventions; literary and artistic works, designs; symbols, names and images. It refers to published works originated or authored by individuals, groups or companies. Just about everything you create can be considered to be intellectual property. The laws that govern can be intricate, confusing and appear contradictory, however IP is woven into the fabric of our lives; from the products and services we buy, to the work we do. IP law provides an incentive to create and innovate in a secure environment, without fear our work will be misused or abused.

Defining individuality

The reason IP is so valuable is because it defines individuality. The most obvious expression of IP is a brand name and an associated logo; just think of the Coca-Cola script, the Nike swoosh, or the Vodafone speech mark logo. These companies vigorously protect their brand names and logos because they are critical to how they differentiate themselves from competitors and communicate their individuality.

You’d be hard pressed to find a world famous brand which is not trademarked. The swoosh of Nike®; Bibendum for Michelin®; the Spencerian script of Coca-Cola®; the Golden Arches of McDonald’s®; the arrow within FedEx®; and the bite in the Apple®.

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What happens when you don’t seek protection

A few years ago I was approached by a client (who will remain anonymous) to redesign their SaaS brand. They said “our name doesn’t fit our vision. So we’ve found a new one” because “it was short, to the point and associated with our industry”. They added, “We’ve also bought the dot com URL” which alone had cost them well over £20K. They were keen to move quickly, but I asked a question...

Are you sure you can use the name? Have you secured the trademark?

The client responded, “It’s not a problem, it’ll be fine”.

My ‘spider sense’ always tingles when I’m told “it’ll be fine”. After a quick search I found a couple of businesses operating in the same trademark categories who appeared to have some ownership of the name. I said to the client, “you do understand that if they own this word and have an issue with you using it, we might have to redo everything”.

I was assured that it really wasn’t a problem and we could start. Over the following months, we developed a new brand strategy and identity based around the new name. Our client loved the work. So did we. The project was progressing on-time and on-budget and we were finalising brand guidelines and website design when, out of the blue I got that call. “Hey Gary. Look I’m sorry, but we need to put everything on hold”. My heart sank and even though I knew the answer, I still asked, “What seems to be the problem?”. Without missing a beat the client replied, “We have a problem with the name”.

The work was shelved. We had run out of time and budget and all we could do was a low-level evolutionary update with the existing name. Whilst we were disappointed our client had spent many thousands of pounds on a domain name and creative they couldn’t use. Of course, it is easy to get caught up in the thrill of finding a name you actually like and it being available as a dot com and in the need to move fast, trademarking can feel like a waste of time and money. But as this story shows it can cost much more.

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What happens when you protect your IP

Vodafone vs Lucent Technologies

Shortly after I designed the Vodafone logo and it had been launched to the public by then CEO Sir Chris Gent, I remember getting a call from Vodafone’s lawyers informing me of a legal challenge from Lucent Technologies (a well known telecommunications equipment company). Lucent believed the Vodafone Speech Mark icon was a copy of their ‘brush stroke circle’ logo (apparently it was a Zen Buddhist symbol meaning “eternal truth”). Both logos were circular and red, and (according to Lucent) Vodafone had infringed their trademark and were demanding they change the logo.

Vodafone (as a word) was already protected and the new logo was pended registration (it was a ‘TM’). As the designer, I was asked to submit evidence showing how I got the idea for the icon (which was derived from the opening and closing speech marks I had inserted into the two lowercase “o’s” within Vodafone). The icon was simply the opening ‘o’ positioned next to the word mark.

This paper trail, along with the trademark application proved Vodafone had not copied Lucent’s logo. Ironically, the Vodafone logo was inspired by the work of Landor Associates who created Lucent’s logo, but it was the FedEx logo with the arrow symbol between the capital ‘E’ and the lowercase ‘x’. I loved the simplicity of this solution and thought Vodafone could do with a similar approach.

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Different kinds of IP 

As brand consultants there are three kinds of intellectual property which most directly effect our work; Copyright, Trademark and Patents. However, there are actually seven principal forms of intellectual property which are generally recognised around the world. Depending on your business you may require one or more of these options to protect your interests: 

1. Copyright (for works) 
2. Trademarks (for brands) 
3. Designs (for the appearance of products, both as structural designs and graphics) 
4. Patents (for inventions) 
5. Confidential Information (to protect trade secrets and information not in the public domain) 
6. Plant Breeder’s Rights (to protect new varieties of plants) 
7. Technology Rights (to protect original layout designs for integrated circuits, computer chips, software and coding) 

What is a copyright?

Copyright stands apart from other forms of intellectual property as it is automatically assigned to the originator from the moment the work is created and fixed within a tangible medium. Copyright is a system which is largely free with no requirement to officially register ownership. Though in some countries there are benefits to doing this, such as when avoiding ‘orphan work’ where an owner cannot be determined or is uncontactable.

Copyright is commonly symbolised with a circle containing a ‘C’ – ©, or as a ‘C’ contained within a set of brackets – (C). It is not mandatory to display the symbol with the work. However, a statement of Copyright ownership (e.g. Copyright © Propella) is commonly indicated somewhere on a communication, such as in the footer of a website.

What can be protected

• Literature: Unique words, phrases, company names, tag-lines, articles, stories, poetry, books and documentation
• Visual material: Logos, visual expression, unique shapes, art, photograph, illustration, sketch, typographic arrangement, colour, shape, movies, television, interfaces, products and games
• Smells: You can register a fragrance — e.g. Chanel No.5
• ‍Sounds: Songs, musical scores, advertising jingles

What can’t be protected

• ‍Ideas: You can’t protect an idea, but you can protect the expression of it. For example, Vodafone can’t stop people from using speech marks, however they can stop people copying their logo and the surrounding expression of it ‍
• Facts and discoveries: A scientist who’s found a new form of life can’t patent it because discovery is not an act of ownership. However, if they create a new form of life, it can be

Misconceptions about copyright

It is often assumed copyright ownership is automatically transferred to whoever has paid for whatever has been created. This is incorrect. If you buy a painting from an artist, you own the painting and can enjoy it for personal use and sell it if you wish. But you do not own the copyright or the rights to exploit the artwork commercially.

The artist retains ownership of copyright and you must negotiate permission along with a fee to use the work beyond personal use. This is similar to a buying a photographic image from an online photo library; you select the image and use it according to the terms of the licence.

Transferring copyright ownership

An entity may wish to own the copyright to a piece of work. First, the copyright owner must be willing to transfer ownership and would set a suitable fee for transfer of their property. This fee is typically more substantial than the original fee paid to commission the work. This is because when the creator relinquishes copyright ownership, they lose all rights to how the work can be used and no longer receive any fees, royalties or compensation for the work. Additionally the original owner is then obliged to seek permission (and potentially pay fees) for using the work from the new owner.

Do you need to own copyright?

It really depends on how valuable that piece of work is to you. Given the pace of change today, it can be argued there is little need to buy the copyright for work you’ve commissioned - what you use today, you may not need tomorrow and simply using the work under the terms of the original licence may suffice.

Repurposing copyrighted work

If you wish to repurpose a work we recommend talking to the copyright owner about any changes you may wish to make to their work. Repurposing or amending work is often seen within the work of architects whose permission must be sought before modifications can be made to the buildings they have designed.

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What is a trademark?

In contrast to copyright, a ‘trademark’ requires registration through an appropriate authority in order for it to be effective. In Australia, this is IP Australia; in the UK it is the Intellectual Property Office; in the USA it is the United States Patent and Trademark Office. These authorities abide by internationally agreed upon legal intellectual property frameworks. Of course, there are nuances within these agreements when attempting to trademark globally and in these circumstances we recommend you engage an internationally experienced IP lawyer.

There are a few symbols which are used to indicate the kind of trademark you are dealing with. These symbols may be visually attached to the entity name or logo. They are typically positioned on the upper righthand side (e.g. Entity™) and can be sized and styled in a manner sympathetic to the logo design.

The four principal trademark symbols are: 

• The ‘TM’ symbol (e.g. Entity™) which indicates an entity has been submitted to be considered for Trademark registration
• The ‘SM’ symbol (e.g. Entity℠) is a rarely used symbol which indicates an unregistered Servicemark (typically used for words, phrases, designs and marks of identification for service)
• The ‘R’ symbol (e.g. Entity®) indicates a successfully registered Trademark
• The ‘P’ symbol (e.g. Sound℗) is used to indicate a registered Trademark for music and sound. The ‘P’ stands for ‘Phonogram’

Whilst these symbols need not be displayed, it is an outward show of ownership which encourages people to respect your trademark. This can be useful from a legal perspective if you become engaged in a dispute. It should also be noted it is against the law to use the (R), (TM) or (P) devices with your entity if registration has not been sought or has not been successful.

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Trademark vs copyright

Whilst a “Trademark” and “Copyright” both protect intellectual property, they are actually different systems:

• Unlike copyright, a trademark is not automatically given
• Trademarks must be applied for with an official intellectual property authority
• Application (TM) does not guarantee your trademark will be successfully registered (R)
• Trademarks have to be renewed, usually every 10 years
• A trademark and copyright may be owned by different people

It should also be noted that whilst you may own a registered business name (e.g. with the Australian Business Register) it does not give you ownership of the trademark, unless you have successfully registered the name as a trademark.

Advantages to not seeking protection

Sometime, it can actually work in the favour of a identity to not enforce copyright ownership or seek trademark registration. This is often seen within identities for movements who wish to be widely embraced and promoted by people.

A good example of this is the now famous CND logo designed by British artist Gerald Holtom in 1958. It became one of the world’s most recognisable logos, known as the ‘peace symbol’ which features a circle with three lines running through it. The symbol was designed to represent the semaphore letters “N” and “D” for Nuclear Disarmament, with the lines serving as a symbolic visualisation of hands reaching out in peace.

Because trademark application was never sought, it became possible for the general public to adopt the logo as a general purpose symbol for peace. In the public domain the symbol has been adjusted and used in a multitude of creative ways. It has been plagiarised, satirised and glorified and through public use it has become a truly iconic logo.

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What is a patent?

A ‘patent’ operates to protect the mechanical or engineering principles of a product. According to IP Australia, a patent protects any device, substance, method or process that is new, inventive and useful. A patent must be applied for and the cost can vary dramatically; from $110 for a provisional patent, to several thousand dollars for full protection.

Patent protection: Dyson vs Hoover

British inventor and entrepreneur James Dyson had developed ground-breaking cyclonic, bagless vacuum cleaning technology. He approached the established vacuum cleaning manufacturers with his idea, but because they did not want to disturb the valuable market for replacement dust bags, he was turned away. Instead of giving up, Dyson personally funded and launched the pink G-Force cleaner in Japan through catalogue sales. His invention ultimately became the fastest selling vacuum cleaner ever made in the UK, outselling the products of those who had rejected his idea.

Following his success, other manufacturers began selling their own cyclonic cleaners in an attempt to compete with Dyson. Fortunately, Dyson had the foresight to file patents for his technology and he successfully sued Hoover for patent infringement. The High Court ruled that Hoover had deliberately copied a fundamental part of his designs, costing Hoover £4 Million in damages. Dyson now also receives royalties from competitor brands which use his tech.

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Always seek expert advice

Other than my first-hand experience with trademark and copyright issues, I do not pretend to be an intellectual property expert. I always recommend you use the services of a professional IP lawyer. Of course, it is possible to manage your own intellectual property, but there are complexities, such as which classes or countries you should register in, or when, or if you should pursue enforcement of your rights of ownership if someone has infringed your rights.

We have worked with several great IP lawyers over the years and recommend the following: 

Blair Beven

Blair Beven is the CEO and Principal of XVII Degrees. Blair has a wealth of experience with top-tier IP legal firms and has helped us on a variety of projects. He was also responsible for helping us secure Propella® as a registered trademark.

Rachel Triplow

Rachael Triplow is the owner of boutique IP legal firm aRc based in New Zealand. Rachel has helped us protect the intellectual property for various projects internationally, including Munchie Picchu and Brazooka.

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The future of IP

There is no doubt that intellectual property law will continue to be important for protecting creative endeavours. However, we are in the early stages of seeing creativity produced by artificial intelligence, albeit under the instruction of people. I predict we will see some significant activity by intellectual property lawyers as to how this sort of work effectively ‘strip-mines’ the work of creative people. Time will reveal all.

Further Reading

More information about intellectual property can be found online:

Australia — IP Australia

United Kingdom — Intellectual Property Office

United States of America — United States Patent and Trademark Office

WIPO — World Intellectual Property Organisation

Recommended Books

Owning It by Sharon Givoni provides a comprehensive (and comprehensible) introduction to intellectual property and copyright law.