Who retains legal rights to the logos of long defunct companies?

February 20, 2011 6:52 PM

Who retains legal rights to the logos of long defunct companies?

My hobby is recreating the logos from long defunct local companies in the DC area using modern graphic design software. I upload them to sites like Zazzle and Cafepress so that I can get them printed onto a t-shirt for my own personal use. The artwork is spot-on to the original logos and I love showing them off to friends who remember them. I'd like to offer them up for sale to other people who think it's cool to wear such cool, nostalgic, and geographically specific logos but I'm unclear as to whether doing so is legal. Is there a way to determine if such logos are still covered by some sort of registered trademark or copyright? Most of the companies have been out of business for more than 30 years, so it seems unlikely that I'd be stepping on anyone's rights doing so. Is there any expiration date on such trademarks or can I just move forward until such time as I receive a Cease And Desist letter?

posted by Jamesonian to law & government (8 answers total)

If they're major companies, seemingly defunct or not, you're playing with fire. Odds are the brands were purchased by some other company, which has an interest even though they don't use them anymore. If they were mom-n-pops and they weren't trademarked or copyrighted (an expensive process most smaller businesses don't bother with), you will probably be fine.
posted by randomkeystrike at 7:01 PM on February 20, 2011

Didn't Marc Jacobs put out a bunch of designs using the Pan Am logo, recently? Maybe call them up and ask what hoops they had to jump through?

In fact, I have insider knowledge (shhhh!) that NBC just ordered a TV pilot for a series based on the lives of Pan Am "stewardesses" in the 1960's. Which implies that this sort of thing might be worthwhile to do - otherwise they would license a currently operational company (product placement!) or just invent a stand-in.

Another interesting wrinkle, and probably easier to approach for advice than either Marc Jacobs or NBC: this New Orleans based t-shirt company that prints designs with the logos of long-defunct local businesses.
posted by Sara C. at 7:07 PM on February 20, 2011

You need to talk to an IP lawyer about this.
posted by Leezie at 7:07 PM on February 20, 2011

You can search the USPTO for the status of marks. There are explanations of how to search a combination of logos and words. It takes a little getting used to, but better than being gone after for infringement.

http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4002:halqd7.1.1

The term of federal trademark registration is 10 years, but holders can re-register the mark without limitations like with copyright or patents. In order to maintain the registration, though, the mark has to be used in commerce, otherwise the trademark is no longer valid.
posted by HonoriaGlossop at 7:14 PM on February 20, 2011

I should add that my above comment only applies to logos that have been trademarked--they can also be copyrighted if they meet certain requirements. Chances are if it is copyrighted, it will still be protected as copyright terms are rather long. This chart will tell you what the term if you have some idea when it was first registered: http://copyright.cornell.edu/resources/publicdomain.cfm

You can search copyright records here (and there is information on searching records from before 1978) at the US Copyright office. http://www.copyright.gov/records/

This is all kind of where you start--if you are really looking to explore this idea, it really probably is best to talk to an intellectual property lawyer, and have them search the records for you since it can be complicated and people with no experience doing it can miss things.
posted by HonoriaGlossop at 7:41 PM on February 20, 2011

IANAL - My understanding is that anything anyone creates is covered by copyright law the moment they create it. But it is up to the copyright holder to defend it.

That said, you should just do it until you get a cease and desist letter.
posted by j03 at 11:14 PM on February 20, 2011

It is not at all unusual for the intellectual property (i.e. trademarks) of dead companies to be bartered around. A company that went out of business decades ago might have had its assets purchased by a holding company or a Ginormous Corporate Entity. Said entities might have a large portfolio of these marks that they may (or may not) keep alive; some GCE's might even have corporate paralegals searching the 'net.

Also, the threshhold for "use in commerce" is very low.

Even absent an active federal trademark registration, I'm sure lawyers or law students can come up with ways that Bad Things could still happen.

Think about it this way. There are lots of old abandonware arcade ROMS out there. Many of the authors of those ROMS (corporate or otherwise) are long gone. But because of the uncertainty regarding ownership, etc. -- how many fully legitimate ROMS are there?

Others in this thread have pointed you towards a lawyer consultation. You are unlikely to get a formal legal opinion about the potential liability of your T-shirt business without spending a disproportionate sum of money, and even then the opinion would likely have lots of uncertainty. If you really are interested in learning more, I suggest an informal conversation with a lawyer or legally savvy person about IP law in general (and the difference between trademarks and copyrights).

Your question also asks whether your conduct is "legal". Before you go down this road very far, you should become familiar with the concepts of criminal liability versus civil liability, and how businesses very often weigh the risk of potential civil liability against the benefits. A general conversation about "statutory penalties" might also enlighten you regarding bad things that might happen to you (i.e. liability you might incur) even before you receive a cease & desist letter.
posted by QuantumMeruit at 11:31 PM on February 20, 2011

There are two things going on. One is the trademark issue - an amazingly wide variety of things can be trademarked, from a combination of words ("Coke adds life!") or a design (the Coke logo) to things like colors (Cadbury purple) and sounds (the Harley Davidson engine sound). Of the wide variety of things that can be trademarked, some of them are also things that can be copyright. Advertising jingles, for instance, are copyright, and so are artistic designs like elaborate logos. So this second attribute - the ability to be copyright - is a feature of the trademark as an artistic work and it exists whether or not the trademark is currently in use.

This means that you have two issues you need to consider. First, are you reproducing a "work" that is copyright? That's a lawyerin' question. The second is, are you falsely using a trademark? That's a lawyerin' question too. If nobody is using the trademark to sell goods then you're probably safe, and in the right context you might be safe even if someone is using the trademark to sell their product but not using it to sell, e.g., branded gifts and other merchandise. This, incidentally, is why you can buy so many different branded Coke products - anything imaginable that could appear with a Coke logo is either an imitation of an actual Coke product or might wrongly be thought to be an actual Coke product. So don't do that.

All this being said, and I am not a lawyer or even a US citizen, I would personally feel safe reproducing logos of companies that are long out of business and which haven't been bought out by large and litigious competitors. If the thing I were reproducing were some simple combination of words and letters rather than a piece of art then I wouldn't worry about the copyright aspect, but if it were some beautiful and complicated piece I would make sure that it had been designed so long ago that it was no longer copyright.
posted by Joe in Australia at 2:34 AM on February 21, 2011