Sometimes a Logo Is Just a Logo

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The recent hubbub surrounding Quark's new logo has raised several questions, problems, and misconceptions about both the creative and legal aspects of trademarks. Perhaps because Quark is a high-profile company in the graphic arts, or because it's suffering from major public relations challenges, the design industry has collectively elevated this particular trademark conflict to unusually high emotional levels.

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As soon as Quark, Inc. released its new logo, similar designs surfaced all over the place. Is it a giant conspiracy? More likely, Quark and its design firm SicolaMartin fell into the trendy logo pit. Only a CSI-style analysis would discover which of these many designs came first and which, if any, were "inspired" by the others.

While I agree that Quark and its design firm SicolaMartin (a division of Young & Rubicam) made mistakes, they're not the mistakes most people are talking about. There is no evidence that Quark deliberately stole someone else's logo, or that the company was incomplete in its efforts to find possible conflicts. This case points out how difficult it is to maintain originality, and it teaches us a few lessons about brand design and implementation.

So What Happened?
As far as I can tell, Quark did all the things you should do when embarking on a new brand identity. First, they hired a reputable firm, though you could argue that SicolaMartin is not a specialist in corporate identity. But SicolaMartin certainly has the chops to be considered professional.

Second, according to a Quark spokesperson, Quark used two trademark search companies to look for possible conflicts in the United States and internationally.

And third, Quark backed up the new logo design with specific rationale that tied the design to its marketing objectives and products/services.

To understand how, after all that, an almost-identical logo design and several similar designs could crop up so quickly, you have to understand the process of trademark review and search.

Needle in a Haystack
In my career, I've been responsible for trademarks that represented nearly 100% of the brand's value, so we took those assets very seriously. The companies I worked for had in-house legal services and used the services of outside trademark specialists. We did everything possible to develop and protect unique and difficult-to-copy brands. But problems still occurred.

Many people don't understand that trademarks are not typically universal in their coverage or protection. Trademarks are filed with the United States Patent and Trademark Office (USPTO) in specific industry categories, such as Insurance and Financial, Hotels and Restaurants, or Toys and Sporting Goods. Having a trademark in one category does not necessarily provide protection in another category, especially if there is little or no overlap in the goods or services.

So most trademarks are filed as applicable only in the categories chosen by the filing company. In my small town, for example, there are at least four companies called Adobe, including my veterinarian. I suspect there are thousands of similarly named companies around the country, many of them with trademarks in their appropriate categories. If all trademarks covered all uses, we'd have run out of possible brand names and company names a long time ago.

Once the filer selects the appropriate trademark categories, the filer (or a third-party specialist) usually undertakes a search for possible conflicts. In addition, as part of the application review process, a USPTO examiner researches the USPTO database for possible conflicts. These searches generally focus on the words of the trademark, though they can include the design elements as well. You can do your own trademark search on the USPTO Web site -- that should always be the first step you take when considering a new trademark application.

This conflict search isn't easy. There are millions of entries in the USPTO trademark database, and millions more internationally. And since most searches are by word, category, or company, it's easy to miss a design conflict such as that between Quark and the Scottish Arts Council. (Even a word search wouldn't have turned up this conflict because the SAC doesn't have a Q in its name. Its mark represents a lowercase a). There are trademark search companies (Thomson & Thomson, for example), who can look for design conflicts as well, but that level of search is not typical for companies, such as Quark, doing business in a specialized category.

You might think that if observant designers around the world can post several similar logos within hours of Quark's public debut of the new logo, it should have been just as easy for Quark to have identified the same conflicts. Not necessarily so.

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Spending lots of money does not guarantee a unique trademark. One the most famous examples is from 1976 when the National Broadcasting Company debuted its new logo, which had cost $600,000 to design (a huge amount in today's dollars). Immediately after the much-hyped unveiling, the Nebraska Educational Television Network pointed out that they had been using the same logo for several years and had spent $100 on the design. In this case, since both companies were in the broadcast business, NBC had to reach a settlement with the Nebraska ETV Network.

GO TO PAGE 2 for details on Quark's biggest mistake and advice that will save you from landing in this kind of hot water.

The Legal Ramifications
According to a trademark attorney I spoke to, trademark law provides "very few clear answers" when it comes to conflict. The main concept at work in trademark law is likelihood of confusion. Two companies using the same trademark may not be in conflict when there's little chance consumers would be confused. If there is possible market confusion, two companies may be in conflict when their trademarks are merely similar, not identical.

In the case of Quark vs. Scottish Arts Council, it's unlikely anyone would confuse the two organizations or the services and products they represent. Any change on Quark's part will likely be motivated by goodwill, not the law.

In very high-profile cases, with brands like Apple or Nike, there is another concept at work, that of dilution. If a trademark is so famous that it is primarily associated with one company, that company can make a case that any use of its trademark will dilute the investment they've made in establishing that mark. Neither Quark nor the Scottish Arts Council have that sort of profile, so they would have to prove direct market confusion.

The Bigger Mistake Quark Made
You may not believe that the similarity between Quark's new logo and the Scottish Arts Council was unintentional. I do, but to me that's not the real point of this situation. I don't understand why Quark didn't take several design steps that should be basic when creating a brand identity that's not only unique, but less likely to encounter conflict.

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Top, the upper and lowercase Q and A from the typeface PopGod by Rian Hughes. Bottom, a sample of the font Girl by Dirk Uhlenbrock.

One danger of using a stylized letter as your primary logo is that the generic nature of a letter in the alphabet makes it tricky to protect legally. There are millions of businesses entitled to use the letter Q for a logo. I don't know what Quark paid for its new logo, but for under $50 they could have purchased either of the two commercial typefaces above. London type and graphic designer Rian Hughes dreamed up the typeface PopGod in 2002; it was released in 2003. Rian told me, "I guess there are some simple geometric design solutions that will be repeatedly arrived at completely independently of each other -- I'm surprised that it doesn't happen more often."

Or take the font Girl by Dirk Uhlenbrock. According to the type house Fountain, Uhlenbrock first conceived this design in 1998 after studying Bauhaus typography. It was released in 2003. I'll bet you can find the same geometric shape in an old Dover clip-art book, or from the SoloType collection of vintage fonts.

According to Jeff Fisher of Logomotives (and the author of The Savvy Designer's Guide to Success), the Quark incident challenges designers to do better.

"It's a call for creative professionals to push themselves harder in their creative efforts," says Fisher. "While I have hundreds of design books on my shelves, I seldom flip through the volumes for inspiration. My best ideas come from my first impressions based on the initial input from a client.

"Once concepts are fine-tuned, it's time to do your homework and determine if the design is unique enough to present to clients. You search by whatever means available: self research, a trademark attorney, an image search firm, or even relying on the eyes of designers on forums."

According to Fisher, David E. Carter's 1999 book Bullet-Proof Logos: Creating great designs which avoid legal problems is a valuable resource. "Carter says three types of logos can help designers avoid infringement issues:

"One, name in type: A simple type treatment of a business name can often set it apart from other firms in a graphically pleasing manner. Two, name in modified type: The unique modification of a typeface, in representing a company name, can present a logo that can't be easily duplicated. And three, name in type with a secondary device. I use this technique a lot in creating logos that incorporate a unique art element as a letterform, or a specific design element within a type treatment, which then limits the possibility of the design being 'borrowed.' Many identities that face infringement issues are those with a simple graphic symbol, often a geometric shape, slapped up next to a simple type treatment of the name."

I got some of the same advice from attorney J. Scott Culpepper, a partner specializing in trademark and patent law with the firm Thomas, Kayden, Horstemeyer and Risley in Atlanta. His three top tips for avoiding trademark problems:

  1. Spend the money for the most thorough search possible.
  2. Use stylized design, but be sure to incorporate the full name of the company or product, even if they're tied together only by a unique border, color, or other graphic element.
  3. When possible, the name itself should be unrelated to the goods or services involved. (So "Big Dog Plumbing" is better than "The Plumbing Professionals.")

The Public Relations Issue
Quark's real trouble with its new logo is not a legal one. It's a public relations snafu that must be handled appropriately. Quark should voluntarily change the mark and cite respect for the creativity of other organizations as the reason. (Quark says it has variations on the logo; perhaps one of those differs enough to pour oil on troubled waters.) If the company has already printed a lot of material with the controversial logo, the monetary cost of a change will be high. But what is the cost of the design community's ire?

That's not to say that we in the design community don't have our own fall-out to deal with. We've set ourselves up for harsh criticism when things like this happen. I thought winemakers were the kings of pretentious superlatives to describe the uniqueness of their products. But check out these passages from the Quark press release about the new logo:

"The green just came into being. I was looking for something that would take Quark in a completely new direction -- a color that was friendly and inviting, but would also really help Quark stand apart. We wanted to help Quark break out of the visual 'sea of sameness' that lumps together so many corporate software companies," said Chris Wood, creative director at SicolaMartin and designer of the new Quark logo. "It really was an evolution. The more I played with the green, the more it came to represent so many things that Quark has gone through: rejuvenation, growth, and rebirth. It just seemed to make sense."

Does one mark really say all those things?

I'm reminded of a 1960s cartoon from the old Look Magazine. In several frames, a woman describes the color she would like the painter to use for her living room. "I want to bring out the soothing warmth of these drapes," she says in one frame, as the painter patiently stands in silence. (I'm paraphrasing a bit.) In the next frame, she says, "I also want to bring out the bold vibrancy and stimulation contained in this painting." And then in the following frame, "It's important that the room make a statement of sophistication, humor, and good taste."

The painter returns to his truck where a helper is cleaning brushes. "Gonna paint it green," he says.

Sometimes green is just green, and the letter Q is just the letter Q. There's nothing wrong with Quark's goal of using design as a way to symbolize new direction and commitment. But to read too much into it sets up everyone for disappointment. In this case, the effort not only fell short of the goal, but also backfired in a way that gave Quark antagonists something new to gripe about. And God knows the company doesn't need that right now.

Read more by Gene Gable.

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