Columbus, OH asked in Copyright and Trademark for Ohio

Q: Can a logo that was purchased on Etsy by numerous people be trademarked?

I am creating a new company and was browsing Etsy for logos. I stumbled upon a premade logo that is being sold with a company name. It is not one of a kind, therefore can be sold to other people as well. If it has not been copyrighted/trademarked/registered yet, am I able to use this logo and company name?

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1 Lawyer Answer
Michael Gerity
Michael Gerity
  • Trademarks Lawyer
  • Phoenix, AZ

A: There are an awful lot of issues here that can't be addressed without more facts, but here are some initial thoughts. First off, any copyright would be held by the designer of the logo. Presumably, if you purchase the logo from the designer, then it would come with at least a license to use the logo. That's something you would want to confirm with the seller.

As for using the logo in conjunction with your business, that would depend entirely upon whether or not another business offering the same or similar products/services has already started to use the logo for their business. Trademark rights arise from using a mark (word, phrase, logo, etc) in commerce in conjunction with the offering of products or services. Two different companies can arguably use the same or a very similar mark at the same time, so long as there is no reasonable likelihood of confusion in the relevant consumer market. The likelihood of confusion depends on a lot of factors, but one major one is the similarity of the products/services being offered with the mark by each company. You sell paper, for example, and they sell cars, and that reduces the likelihood of confusion. The problem you would then have would be determining what other companies the logo has been sold to and what kinds of products/services those companies offer.

By the way, you can't actually rely on formal trademark registrations for this, because trademark rights initially arise from the act of using the mark in commerce with the sale of the products/services. Formal registration is not required in order to secure the initial rights to the mark, though it is generally required in order to enforce those rights.

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