May I use common symbol (like #, &#167;) as a logo for a company or product of a company? May I use common symbol (like #, §) as a logo for a company or product of a company? As a trademark? What if I slightly change it? May it be a registered trademark? (Related to the US mainly)
It depends. Symbols which are not entitled to trademark protection in a market, usually because they are merely descriptive or generic or functional, are in the public domain and may be used by anyone, but a person using a descriptive or generic symbol can't prevent someone else from using the same symbol to promote their own business. For example, I can use the scales of justice symbol to promote my law practice on my law firm website. But, since that symbol is a generic one in the law firm market, I can't sue a competing law firm from using the same symbol on their website. The essence of a protectable trademark that an owner of can legally exclude competing firms in the same market from using, is that your firm manages to infuse into the distinctive affectation for which trademark protection is claimed with what is called "secondary meaning" to the words or image or other manifestation of the trademark when it is used in the market where the owner of the mark wants to obtain trademark protection. For example, descriptive trademarks are not eligible for trademark protection and are instead in the public domain and can be used by anyone in a market where the mark is descriptive. You can't gain a legally protected right to use the word "liquor" to describe a business that is engaged in selling liquor, and you can't gain a legally protected right to use the words "doughnut shop" for a business that sells doughnuts. But, if you use the words "doughnut shop" to describe a business that sells liquor or bras, rather than doughnuts, and those words come to be associated in the mind of the public with your particular chain of liquor stores or lingerie stores, then the words "doughnut shop" have acquired a "secondary meaning" which can be legally protected by trademark law allowing you to deny other businesses the right to use that trademark in the economic market where it has acquired a secondary meaning. (The scope of an economic market can be both geographic and conceptual related to the nature of the products sold. The manner in which an economic market is determined for a mark is beyond the scope of this answer or the original question.) The analysis with respect to symbols is analogous. You can't gain legal protections for using a common symbol in a manner that merely conveys its pre-existing common meaning. For example, if you use the hashtag sign # to mean "number" or "pound", that probably cannot be legally protected by trademark law. But, suppose that one particular firm (e.g. Twitter) uses the hashtag sign in a novel sense associated exclusively with a service that this particular firm provides, in a manner that is not semantically derived from its pre-existing meanings. In that situation, the firm might very well be permitted to claim trademark protection for the use of that common symbol in this new sense that has a "secondary meaning", which associates that symbol in a certain context exclusively with that firm, in the market where that firm does business. Similarly, you could probably not gain trademark protection for the common highway "yield sign" design to mean "yield" or be careful or some other similar semantic meaning. But, if you used the common highway yield sign to sell spaceships, and people came to associate that symbol with the spaceships sold by your particular firm, rather than with spaceships in general, you might be able to secure trademark protection for the yield sign symbol in that marketplace. It is easier to develop a "secondary meaning" for a distinctive and particular stylized presentation of either words in a particular script, or a variation on what would otherwise be a common symbol, than it is to develop a "secondary meaning" for generic words or a generic symbol that is has an existing meaning in other contexts. For example, while Apple could probably not have claimed trademark protection for an image of a clock spinning clockwise while the user has to wait while the computer is thinking about something, Apple's distinctive variant of this image (which some people call the "pinwheel of death") might very well be eligible for trademark protection.' The AppleOS pinwheel of death
Yes, if you do not use the trademarked name. In the U.S. the graphical shape of fonts are not protected by copyright. See 37 CRF section 202.1 Typefaces are specifically excluded. Excluded are under (a) &quot;mere variations of typographic ornamentation,&quot; and (e) &quot;Typeface as typeface.&quot; The computer code that a font/typeface program uses to produce the shapes can be copyright. Importantly, fonts are protected by their trademarked names.
There must be a use in commerce Assuming there are no other barriers to trademark protection, you are asking what amounts to a &quot;use in commerce&quot; that is sufficient to warrant trademark protection (I'm assuming in United States law). In the United States, the protection comes from the Lanham Act, and protection requires &quot;use in commerce&quot;. See e.g. International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359 (4th Cir. 2003). This requires &quot;the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark&quot; (15 U.S.C. § 1127). This does not require a sale and token sales are not determinative However, &quot;the existence of sale or lack thereof does not by itself determine whether a user of a mark has established owenrship rights therein&quot; (Planetary Motion v. Techplosion, 261 F.3d 1188 (11th Cir. 2001)): announcement of a title (&quot;Plasmer&quot;) to 13 million comic book readers and promotion at a trade conference was sufficient to establish trademark rights, even without sales but a toy manufacturer's promotional efforts were not sufficient—they only made a few presentations and even made one sale to a toy retailer The talismanic test is whether or not the mark was used &quot;in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark&quot; (Windows User, Inc. v. Reed Business Publishing Ltd., 795 F. Supp. 103 (S.D.N.Y. 1992), citing New England Duplicating Co. v. Mendes, 190 F.2d 415, 417 (1st Cir. 1951)) The Court in Planetary Motion says &quot;Courts applying the 'totality of circumstances' approach routinely have found evidence of a few sales of goods to which the mark had been affixed insufficient to establish trademark ownership.&quot; In the particular case in Planetary Motion, the Court found that free distribution of software using the &quot;Coolmail&quot; mark constituted a &quot;use in commerce.&quot; The factors they noted were: the distribution was widespread there was evidence that the public actually associated the mark with the software distribution was not limited to a trade show or a group of friends or small circle the software was posted and accessible on the internet using the filename bearing &quot;Coolmail&quot; users were communicating about the software using the word &quot;Coolmail&quot; the software was incorporated into other software that was sold the software was distributed under a GNU General Public License—&quot;the sufficiency of use should be determined according to the customary practices of a particular industry&quot; Application is fact-based, looking at the totality of the circumstances Applying the principles from above to your hypothetical, the fact that there are not widespread sales would raise an immediate issue that could be argued in litigation. The question would come up as to whether this was a &quot;bona fide use&quot; and not use &quot;made merely to reserve a right in a mark.&quot; In my view, the single donation of one dollar would not change anything; nor would even a literal sale of a single shirt. The question would turn on whether the distribution of 100,000 shirts, even without sale, created a connection in the minds of users between the mark and a product (presumably clothing?), and put others on sufficient notice that this mark was to be used in commerce. This is a heavily fact-based inquiry, and on the facts of the hypothetical, we just don't have the information to answer this.
From those articles, it seems that at least some versions of the "Supreme" Logo have been successfully registered. Therefore, any "confusingly similar" logo would be infringement, and could subject anyone using such logos in trade to an infringement suit. And it seems that the owners of the Supreme line are quite willing to sue. It does not, therefore, follow that every possible logo consisting of a red box with white lettering in the Futura font would be an infringement. Similarity depends on the overall effect of a mark, and the main test is the likelihood of confusion or deception of reasonable customers or potential customers. If the text is, say, multiple words, none of which is the word "supreme" or any similar word, then it might arguably be not the Supreme logo, but a different logo that has some similar elements. (If you describe it as "the Supreme logo but" you make your opponent's case for them.) Whether a specific choice of words would be confusingly similar is more specific than this forum can get. You should consult a trademark lawyer for advice on that point. But if in doubt you might want to go with a greater difference. How about a blue box instead of a red one?
There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use". However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued.
I am assuming that you are in the United States for this question. Please correct me if this is not the case. MathWorks still holds the right to take action, which may be anything from cease-and-desist letters up to litigation. You have followed the correct process in asking for permission to use a trademark. The owner of the trademark, MathWorks, has given you their answer, which is quite simply, "no". You may not feel that their reasoning is fair, but the default state of trademarks is that they are under ownership of whomever created them, and you do not have permission to use them. Things will remain that way unless MathWorks changes their mind. It doesn't matter if it feels dismissive of them; they are under no obligation to even consider requests to use their marks. If they didn't explicitly say, "sure, go ahead", or even, "yes, you may use it provided you follow a list of conditions", then using their trademark will be an unlicensed usage. If you still would like to pursue getting permission to use their trademarked assets, you will need to try to contact them again. Until they say otherwise, using their trademarks will be considered unauthorized use. (Edited to add this clarification brought up by @David Siegel): However, your usage might not be violation of trademark. The primary purpose of trademark restriction is to stop someone from misrepresenting a product as being from the entity that owns the trademark; this stops someone from, for example, selling a cola soft drink called "Coke-a-Cola". The reasons for this are manyfold, but the basic idea is that allowing that type of usage means that consumers might not be able to tell that your product is distinct from the original, and could then mistakenly attribute the quality and level of service of the previous brand with the new product. If your usage of MATLAB marks is such that you are identifying the products used as from MathWorks, and not yourself, and are doing everything in good faith to disassociate your website and/or offerings from MathWorks, it is possible that your usage would be considered correct usage of trademark. Even if it is legal usage, MathWorks still may decide to take action. If MathWorks believes that your usage is unauthorized and that it is trademark violation, they may decide to take action. This is regardless of whether it actually is; until you have this case in front of a court, you will not get a definitive answer. We cannot answer whether this is a legal usage of trademark. Ultimately, whether or not a usage of a mark is considered to be correct usage is a question that can only be answered by the courts, which means the only person who can give you concrete advice on a course of action is a lawyer. In lieu of proper legal advice, you will need to weigh the risk of MathWorks taking action against your usage with the benefit you receive from usage. (Edited to add this clarification by @Dale M): Regardless, you may be breaking copyright by using the logo. There is a separate issue besides just trademark at play here. The copyright for the MATLAB logo belongs to whomever created it/owns it (presumably, MathWorks in this case). Using the logo without permission is a copyright violation. The only case in which this would not be a violation is if the logo is released for use in general under a compatible license, such as Creative Commons; do note that these licenses typically have additional conditions, such as requiring attribution. If you are unaware as to whether there is a such a license, or if you fail to follow the terms of the license, usage of the logo almost certainly constitutes copyright infringement.
I think you will find that &quot;sign&quot; here means &quot;mark&quot; and includes a word, a phrase, or a logo, or a combination of any of these. Indeed section 6 of the act defines this: &quot;sign&quot; includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. The main test is whether the two marks are &quot;confusingly similar&quot; or whether prospective customers are likely to be confused into thinking that one seller is actually the other, or into attributing to one the goodwill or reputation of the other. (This standard is much the same under US law or the laws of a good many other countries.) This is a very fact-intensive determination, and is to some extent a judgement call. But a difference in one letter only, with little or no difference in sound, might well be sufficiently similar to cause confusion. Note that section 10 of the law defines this: For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion, and thus this might well be a case of infringement. Note that for infringement to be found, in addition to the marks being &quot;deceptively similar&quot;, the goods or services must also be similar or in the same category, (or goods &quot;closely related&quot; to protected services or vice versa) unless the mark being infringed on is &quot;well known&quot;.
Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name &quot;Portable Network Graphics&quot; and the abbreviation &quot;PNG&quot; in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that &quot;Portable Network Graphics&quot; is rather descriptive, and not particularly distinctive. Descriptive marks, like &quot;Tasty Pizza&quot; generally get weaker protection, while more distinctive marks, such as &quot;LuAnn's Tastee Pizza&quot; are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply.