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
Song LyricsCopyright

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 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.

The Steps to Getting an Image Trademark

Step 1: Perform A Comprehensive Search

We will conduct a thorough trademark search to ensure your desired mark doesn’t closely resemble existing registered trademarks. Seeking an attorney's help can aid in identifying both exact matches and "confusingly similar" marks, as they have access to various databases and can discern subtle distinctions.

Step 2: File the Trademark Application

After due diligence, we file a trademark application through the Trademark Electronic Application System (TEAS) or its alternative, TEAS Plus. The choice between these two can impact costs and requirements; we'll provide guidance on this decision and help navigate the complexities.

Step 3: Monitor Your Application

Once the application is submitted, expect a waiting period of 4 to 6 months for feedback from the USPTO. While the initial response might be an approval, there's a possibility of receiving an Office Action or denial, but amendments can typically be made and refiled.

Step 4: Finalize Your Registration

Upon application approval, the trademark will be published in the Trademark Official Gazette for 30 days, allowing potential opposition from other companies. If opposed, the case might proceed to the Trademark Trial and Appeal Board (TTAB). If unopposed, a certificate of registration will be issued, but ongoing maintenance is essential to preserve trademark rights.

Xavier Morales, Esq.

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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