Sometimes a Logo is Just a Logo

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everything possible to develop and protect unique and difficult-to-copy brands. But problems still occurred.

Many people don't understand that trademarks are not typically universal in their coverage or protection. Trademarks are filed with

the United States Patent and Trademark Office (USPTO) in specific industry categories, such as Insurance and Financial, Hotels

and Restaurants, or Toys and Sporting Goods. Having a trademark in one category does not necessarily provide protection in

another category, especially if there is little or no overlap in the goods or services.

So most trademarks are filed as applicable only in the categories chosen by the filing company. In my small town, for example,

there are at least four companies called Adobe, including my veterinarian. I suspect there are thousands of similarly named

companies around the country, many of them with trademarks in their appropriate categories. If all trademarks covered all uses,

we'd have run out of possible brand names and company names a long time ago.

Once the filer selects the appropriate trademark categories, the filer (or a third-party specialist) usually undertakes a search for

possible conflicts. In addition, as part of the application review process, a USPTO examiner researches the USPTO database for

possible conflicts. These searches generally focus on the words of the trademark, though they can include the design elements as

well. You can do your own trademark search on the USPTO Web site -- that should always be the first step you take when

considering a new trademark application.

This conflict search isn't easy. There are millions of entries in the USPTO trademark database, and millions more internationally.

And since most searches are by word, category, or company, it's easy to miss a design conflict such as that between Quark and the

Scottish Arts Council. (Even a word search wouldn't have turned up this conflict because the SAC doesn't have a Q in its name. Its

mark represents a lowercase a). There are trademark search companies (Thomson & Thomson, for example), who can look for

design conflicts as well, but that level of search is not typical for companies, such as Quark, doing business in a specialized

category.

You might think that if observant designers around the world can post several similar logos within hours of Quark's public debut

of the new logo, it should have been just as easy for Quark to have identified the same conflicts. Not necessarily so.

Spending lots of money does not guarantee a unique trademark. One the most famous examples is from 1976 when the National

Broadcasting Company debuted its new logo, which had cost $600,000 to design (a huge amount in today's dollars).

Immediately after the much-hyped unveiling, the Nebraska Educational Television Network pointed out that they had been using

the same logo for several years and had spent $100 on the design. In this case, since both companies were in the broadcast

business, NBC had to reach a settlement with the Nebraska ETV Network.

GO TO PAGE 2 for detail s on Quark 's biggest mistake and advice that wil l save you from landing in thi s kind of hot water.

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Gift Guide 2005, Part II

Gift Guide 2005

Sometimes a Logo Is Just a Logo

Quark's new logo is strikingly similar to several others. Is it theft? A global conspiracy? Or a failure to follow basic design principles? Gene

Gable gives you the dirt, including ways you can sidestep the same type of predicament.

Written by Gene Gable on September 21, 2005

Categories: Graphics, Graphics Image Editing, Illustration, P hoto Image Editing, Print, Print Design & Layout, Features

The Legal Ramifications

According to a trademark attorney I spoke to, trademark law provides "very few clear answers" when it

comes to conflict. The main concept at work in trademark law is likelihood of confusion. Two

companies using the same trademark may not be in conflict when there's little chance consumers would

be confused. If there is possible market confusion, two companies may be in conflict when their

trademarks are merely similar, not identical.

In the case of Quark vs. Scottish Arts Council, it's unlikely anyone would confuse the two organizations or the services and

products they represent. Any change on Quark's part will likely be motivated by goodwill, not the law.

In very high-profile cases, with brands like Apple or Nike, there is another concept at work, that ofdilution. If a trademark is sofamous that it is primarily associated with one company, that company can make a case that any use of its trademark will dilute

the investment they've made in establishing that mark. Neither Quark nor the Scottish Arts Council have that sort of profile, so

they would have to prove direct market confusion.

The Bigger Mistake Quark Made

You may not believe that the similarity between Quark's new logo and the Scottish Arts Council was unintentional. I do, but to

me that's not the real point of this situation. I don't understand why Quark didn't take several design steps that should be basic

when creating a brand identity that's not only unique, but less likely to encounter conflict.

Top, the upper and lowercase Q andA from the typeface PopGod by Rian Hughes. Bottom, a sample of the font Girl by Dirk

Uhlenbrock.

One danger of using a stylized letter as your primary logo is that the generic nature of a letter in the alphabet makes it tricky to

protect legally. There are millions of businesses entitled to use the letterQ for a logo. I don't know what Quark paid for its new

logo, but for under $50 they could have purchased either of the two commercial typefaces above. London type and graphic

designer Rian Hughes dreamed up the typeface PopGod in 2002; it was released in 2003. Rian told me, "I guess there are some

simple geometric design solutions that will be repeatedly arrived at completely independently of each other -- I'm surprised that

it doesn't happen more often."

Or take the font Girl by Dirk Uhlenbrock. According to the type house Fountain, Uhlenbrock first conceived this design in 1998

after studying Bauhaus typography. It was released in 2003. I'll bet you can find the same geometric shape in an old Dover

clip-art book, or from the SoloType collection of vintage fonts.

According to Jeff Fisher of Logomotives (and the author ofThe Savvy Designer's Guide to Success), the Quark incident

challenges designers to do better.

"It's a call for creative professionals to push themselves harder in their creative efforts," says Fisher. "While I have hundreds of

design books on my shelves, I seldom flip through the volumes for inspiration. My best ideas come from my first impressions

based on the initial input from a client.

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"Once concepts are fine-tuned, it's time to do your homework and determine if the design is unique enough to present to clients. You

search by whatever means available: self research, a trademark attorney, an image search firm, or even relying on the eyes of designers

on forums."

According to Fisher, David E. Carter's 1999 bookBullet-Proof Logos: Creating great designs which avoid legal problems is a valuable

resource. "Carter says three types of logos can help designers avoid infringement issues:

"One, name in type: A simple type treatment of a business name can often set it apart from other firms in a graphically pleasing manner.

Two, name in modified type: The unique modification of a typeface, in representing a company name, can present a logo that can't beeasily duplicated. And three, name in type with a secondary device. I use this technique a lot in creating logos that incorporate a unique

art element as a letterform, or a specific design element within a type treatment, which then limits the possibility of the design being

'borrowed.' Many identities that face infringement issues are those with a simple graphic symbol, often a geometric shape, slapped up

next to a simple type treatment of the name."

I got some of the same advice from attorney J. Scott Culpepper, a partner specializing in trademark and patent law with the firm

Thomas, Kayden, Horstemeyer and Risley in Atlanta. His three top tips for avoiding trademark problems:

Spend the money for the most thorough search possible.1.

Use stylized design, but be sure to incorporate the full name of the company or product, even if they're tied together only by a

unique border, color, or other graphic element.

2.

When possible, the name itself should be unrelated to the goods or services involved. (So "Big Dog Plumbing" is better than

"The Plumbing Professionals.")

3.

The Public Relations Issue

Quark's real trouble with its new logo is not a legal one. It's a public relations snafu that must be handled appropriately. Quark should

voluntarily change the mark and cite respect for the creativity of other organizations as the reason. (Quark says it has variations on the

logo; perhaps one of those differs enough to pour oil on troubled waters.) If the company has already printed a lot of material with the

controversial logo, the monetary cost of a change will be high. But what is the cost of the design community's ire?

That's not to say that we in the design community don't have our own fall-out to deal with. We've set ourselves up for harsh criticism

when things like this happen. I thought winemakers were the kings of pretentious superlatives to describe the uniqueness of theirproducts. But check out these passages from the Quark press release about the new logo:

"The green just came into being. I was looking for something that would take Quark in a completely new direction -- a color that was

friendly and inviting, but would also really help Quark stand apart. We wanted to help Quark break out of the visual 'sea of sameness'

that lumps together so many corporate software companies," said Chris Wood, creative director at SicolaMartin and designer of the new

Quark logo. "It really was an evolution. The more I played with the green, the more it came to represent so many things that Quark has

gone through: rejuvenation, growth, and rebirth. It just seemed to make sense."

Does one mark really say all those things?

I'm reminded of a 1960s cartoon from the oldLook Magazine. In several frames, a woman describes the color she would like the painter

to use for her living room. "I want to bring out the soothing warmth of these drapes," she says in one frame, as the painter patiently

stands in silence. (I'm paraphrasing a bit.) In the next frame, she says, "I also want to bring out the bold vibrancy and stimulation

contained in this painting." And then in the following frame, "It's important that the room make a statement of sophistication, humor,

and good taste."

The painter returns to his truck where a helper is cleaning brushes. "Gonna paint it green," he says.

Sometimes green is just green, and the letterQ is just the letterQ. There's nothing wrong with Quark's goal of using design as a way to

symbolize new direction and commitment. But to read too much into it sets up everyone for disappointment. In this case, the effort not

only fell short of the goal, but also backfired in a way that gave Quark antagonists something new to gripe about. And God knows the

company doesn't need that right now.

Read more by Gene Gable.

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