Yes, you can trademark artwork, but only if it’s artwork that you use to sell or promote your products or services. If your artwork serves as a logo for your business or as an identifier of your brand, it may qualify for trademark protection under trademark law.
However, if your artwork is a creative work rather than a brand identifier, it is generally protected by copyright instead. Copyright laws safeguard original artwork from unauthorized use, ensuring that others cannot use or reproduce it without permission.
Trademarking Artwork – When Is It Possible?
If you use a particular piece of artwork as a logo for your business or brand name, it is entitled to the same protection as any other logo under trademark law. When registering a trademark, it is important to include all design aspects in your trademark application so that a complete application can be submitted.
To trademark artwork, you must demonstrate to the United States Patent and Trademark Office (USPTO) that your mark is distinctive and used in commerce. The USPTO examines whether your artwork functions as a trademark by distinguishing your goods or services from those of others.
Since trademark applications can be expensive, it is advisable to have all elements double-checked by a trademark attorney before you submit the application. The USPTO does not refund the application fee if your trademark application is rejected.
Copyright vs. Trademark – What’s the Difference?
- Copyright protection applies to artwork that is a creative work fixed in a tangible medium, such as a painting, digital illustration, or computer program. Copyright registration with the Copyright Office strengthens legal protection and makes it easier to enforce rights against copyright infringement.
- Trademark protection applies to artwork that is used as a logo for your business or a brand identifier for goods or services. A registered trademark prevents others from using a similar logo in a way that could cause confusion.
If you want to protect your artwork, consider whether copyright registration or trademark registration is more appropriate based on its use. (Read more in our article on Trademarks vs Copyright.)
How to Register a Trademark for Artwork
Respond to office actions – If the examining attorney issues an office action, you may need to amend your trademark application.
Conduct a trademark search – Check the USPTO database to ensure that your artwork is not similar to an existing registered trademark.
Determine the class of goods or services – Trademarks must be registered within specific classes of goods and services.
File a trademark application – Submit your application to the USPTO along with the required filing fees.
Submit a Statement of Use – If your artwork is not yet being used in commerce, you may need to file an Amendment to Allege Use later in the registration process.
Looking to Protect Your Art?
For further guidance regarding trademarking your artwork, contact us today.
