Names, trademarks and who owns the file

This is not legal advice

Trademark and copyright law differ substantially between countries, and the position on several points below is unsettled or actively being litigated. What follows is the shape of the subject so you know when to ask a lawyer. It is not a substitute for asking one, and nothing here is advice for your situation.

Trademark and copyright are different things

They are confused constantly, and the confusion causes real problems.

• Copyright arises automatically in the artwork (the drawing itself) when it is created. It protects against copying the drawing. In most countries it lasts for decades.
• A trademark protects a sign used in trade to distinguish goods or services. It arises through use in some countries and through registration in others, and it is limited to the classes of goods and services it is registered for.

So: a client who commissions a logo may need both. Copyright in the drawing (which they may or may not own, see below) and a trademark registration for the mark as used in their sector.

Distinctiveness, which decides whether a name is worth protecting

Trademark registries everywhere apply a version of the same spectrum, strongest to weakest:

• Invented: a word that did not exist. Strongest.
• Arbitrary: a real word with no connection to the goods.
• Suggestive: hints at a quality without describing it.
• Descriptive: describes the goods. Registrable only after long use establishes that people associate it with one trader.
• Generic: the name of the thing itself. Never registrable by anyone.

A client set on “Quality Bakery” is choosing something they will not be able to protect and which will be invisible in search. Saying so early, once, is part of the job.

Searching before you draw

Do this before spending days on a mark:

• Search the relevant national registry. India’s is the IP India public search; the UK, EU, US, Australia and most others have free online searches.
• Search for the name plainly, and for the design if the registry supports image search.
• Search domain availability and the main social platforms at the same time.
• Search ordinary web results for the name in the client’s sector.

You are not clearing the mark: that is a professional search, and there are firms that do nothing else. You are avoiding the obvious collision that would waste a week.

Who owns the artwork

This is jurisdiction-dependent and it catches freelancers constantly.

In several common-law countries, copyright in a commissioned work vests in the creator by default unless assigned in writing, so the designer owns the drawing and the client has an implied licence to use it. In others, and in employment situations almost everywhere, it vests in the commissioner or employer. Some jurisdictions also recognise moral rights that cannot be assigned at all.

The practical consequence is the same everywhere: write it down. A single clause in your quotation settles it:

On payment in full, copyright in the final selected mark transfers to the client. Copyright in unselected concepts and in working files remains with the designer. Source files for the selected mark are supplied.

Decide what you are actually selling. Some designers retain source files and supply outputs; some transfer everything. Both are legitimate. What is not legitimate is leaving it unsaid and arguing about it later.

Generated artwork

If any part of the mark came from a generative tool, two separate issues arise and both are unresolved.

Ownership. Several jurisdictions, including the US Copyright Office, have taken the position that purely machine-generated output without sufficient human authorship is not protected by copyright. Other jurisdictions differ, and the boundary of “sufficient human authorship” is exactly what is being argued about. The honest statement to a client is that you cannot promise them an enforceable copyright in generated output.

Similarity. A generator trained on existing logos produces marks resembling ones it has seen, and resemblance to a registered mark is a trademark problem regardless of how it was drawn or who owns the copyright.

The practical route around both: use generated output as a sketch and redraw the final mark yourself, deliberately, from primitives. Then the drawing is yours, and the client’s protection comes from trademark registration and use, which is what they are actually buying.

What to put in writing

Three sentences in every logo quotation: what transfers, when it transfers, and what a trademark search was or was not done. That is the whole of this lesson’s practical output.