Can You Trademark an Image?

Yes, you can trademark an image with the USPTO if its used in the branding of your product (such as a logo). Otherwise, you probably want a copyright on the image.

This information was provided by our founding attorney, Xavier Morales, Esq. 

Trademarking an image is a tricky subject, because we have often found that what folks really are after is a copyright. As we covered in our trademarks vs copyrights article, different items get different types of legal protection.

Trademark or Copyright?

ItemTrademark or Copyright?
Business NameTrademark
Business SloganTrademark
Business LogoCan be both
BooksCopyright
ManuscriptsCopyright
ScreenplaysCopyright
MoviesCopyright
PaintingsCopyright
PhotographsCopyright
PoemsCopyright
Song LyricsCopyright
MusicCopyright

Copyrights for Images

Once you create an image or photograph, you "own" the copyright, as long as it is both original, and fixed to a medium (so, it can't just be an idea for an image.)

However, you need to register the image with the U.S. Copyright Office if you wish to enforce your copyright against someone else who is using your image without permission.

Registering a Copyright

You can use the Copyright.gov online portal to go through the process of registering with the U.S. Copyright Office.

Trademarks for Images

When you utilize an image in active branding, such as Nike's famous "swoosh" logo, it is imperative that you trademark that image. Your first step in trademarking an image is to contact an attorney to attain trademark clearance. Put simply, trademark clearance is permission you obtain to register a trademark after completing a thorough trademark search.

When executed, this search will find not only exact matches of the image you wish to trademark, but images bearing too close a resemblance. If such an image is found, your image will not be eligible for trademark as it could potentially lead to confusion among consumers. If your image receives clearance, it would behoove you to work with an attorney, who will communicate with the USPTO during the trademarking process.

How to Trademark an Image

As we cover in our guide to trademarking logos, there are a few steps you need to follow:

  1. Decide on Your Logo Concept
  2. Check for Existing Trademarks Before You Approve the Design
  3. Ensure a Design Distinctive Enough to Trademark
  4. Apply for Your Trade Mark as Soon as Possible
  5. Wait for the trademark to be approved

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About the Author

Xavier Morales, Esq.

Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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