Symbols and logos play a crucial role in branding for companies around the world. From the simplicity of Nike’s “swoosh” to Apple’s iconic bitten apple silhouette, iconic visual branding can embed itself into public consciousness, building brand recognition and loyalty.
However, legal issues can arise when it comes to trademarking common symbols and shapes. This article will explore whether generic geometric forms, common symbols, and popular emoji can be trademarked under current U.S. trademark law and case history. We’ll also discuss examples of trademark disputes over common symbols and best practices for ensuring your visual branding is protectable.
The Fundamentals of Trademark Law
At its core, trademark law aims to protect consumers from confusion about the source or origin of a product or service. When a company uses a unique brand name, logo, slogan or other trademark in commerce, they earn the right to prevent competitors from using identical or similar marks that could confuse the public.
However, functional designs, generic words or shapes, and widely-used common symbols generally cannot be protected under trademark law. These need to remain free for all commercial use. Distinctiveness is a key requirement for protectability—if a symbol or shape is too commonplace, any association with a single source or brand would be weak or nonexistent in the public mind.
Geometric Shapes & Common Symbols
Simple geometric forms like circles, squares, triangles, and rectangles are considered “basic shapes” that belong in the public domain. As building blocks of visual communication, they cannot function as trademarks on their own.
Likewise, many common symbols have near-universal recognition that precludes one company from claiming exclusive use. Widely used icons like stars, hearts, arrows, or equality signs cannot be registered as marks in standard character form.
However, stylized renditions of these shapes and symbols may demonstrate sufficient distinctiveness for protection in appropriate categories. For example, while the standard “thumbs up” gesture cannot be protected on its own, a uniquely rendered, instantly recognizable version could potentially be registered for certain merchandising uses.
Use in combination with other branding elements can also strengthen claims to a geometric or symbolic icon. Distinctive word marks paired with a basic shape or symbol lend distinctiveness, allowing the combo mark to indicate source and be eligible for trademark registration.
The classic I ♥ NY logo combining a red heart with “I ♥ NY” typography demonstrates this principle. While the heart shape alone could not be protected, addition of the slogan makes the logo distinctive as a whole. Similar examples like the WWF panda logo (with initials), Target bullseye , or Playboy bunny face icon (with word mark) illustrate how common shapes and symbols can gain source-identifying capacity in combination marks.
Trademarkability of Emoji & Emoticons
The explosion in use of emoji and emoticons online and across digital communication raises questions around whether these could potentially function as trademarks. Could a branded smiley face emoji ever indicate source in a way registrable under trademark law?
To date, emoji largely function as an extension of generic text, representing common concepts and emotions. Single emoji like faces, hand signs, hearts, flags or depictions of common objects remain generic symbols any brand can employ. Stylization would again be key—a smiling pile of poop rendered in an instantly recognizable distinct style could perhaps warrant protection.
But use of singular standard emoji currently remains free for commercial use, with no registrations yet granted to individual emoji. Protection only covers unique compilations of multiple emoji into a logo or design. One business successfully registered their logo comprising a champagne bottle emoji plus glass emoji flanking a word mark. But single common emoji like 😀💖🏳️🌈🍔💩 remain fair game.
Until extensively promoted and exclusively used in commerce, standard emoji likely can’t meet the distinctiveness bar indicating one single source (aside from the Unicode Consortium governing emoji standards!). So generic emoji insertion alongside branding should not create barriers to entry against competitors.
Examples of Trademark Disputes Over Common Symbols
Several high profile cases help illustrate the boundaries around claiming common shapes and symbols as trademarks. These examples can guide best practices for keeping branding distinct while respecting limits around universally used geometric forms.
Target Bullseye Trademark Disputes
Retail giant Target staked claim to strong trademark rights protecting their iconic bullseye logo. However, they engaged in a lengthy legal battle against rival Amazon over Amazon’s use of similar bullseye imagery on promotional signage.
Both Target’s logo and Amazon’s sign incorporated red and white concentric circles commonly used to convey the idea of a target or bullseye. But ultimately Target failed to establish that consumers would confuse a literal depiction of a target with their distinctive stylized bullseye brand icon.
This case reaffirmed the generic nature of basic concentric circles and the inability to own common symbolic meanings like “target” or “bullseye” outright. But Target still retains strong rights in their specific mark appearing on branding and retail stores. Competitors cannot closely imitate the look without risking infringement.
Apple vs. NYC Greengrocer: Apple Logo Trademark Dispute
Tech giant Apple zealously enforces its trademark registration for silhouetted apple icons, suing many businesses using apple imagery perceived too similar. One closely watched case targeted a small NYC grocery store that displayed apples in its logo.
Apple argued the stylized apple outline created consumer confusion. But the grocery store successfully defended on grounds their design simply conveyed the nature of their business—selling apples and other green groceries. Nothing about their icon mimicked Apple’s distinctive logo for technology products.
The city also denied Apple’s request to register “Apple” as a trademark for grocery store services. This case demonstrated effective pushback against aggressive overreach, keeping common terms and imagery free for fair use indicating core products sold.
McDonald’s Golden Arches Trademark Battles
The iconic McDonald’s golden arches symbol helped cement their position as the world’s largest restaurant chain. Their logo of stylized, intersecting yellow arches backed by the McDonald’s word mark deserves strong protection from imitation.
However, McDonald’s faced hurdles internationally enforcing rights against businesses using similar arch motifs that merely describe architectural elements. Complex legal battles played out in Malaysia around a restaurant called McCurry, which displayed generic white arcs against a red background on its exterior.
Malaysian courts ultimately allowed McCurry to keep its arched design. Since McDonald’s failed to show the arcs caused specific customer confusion, they could not claim exclusivity over such a basic shape inherent to building design. The elements only combined closely enough to potentially violate where full replicas of the complete golden arches logo appeared.
Best Practices for Protecting Symbols in Branding & Logos
These and other hotly contested legal cases illustrate some ground rules around employing common geometric forms or universal symbols as part of a brand identity:
– Generic shapes, emoji, hand gestures or mathematical symbols on their own generally remain free for fair use and should not be registered alone. But stylized, uniquely rendered versions may warrant protection applied narrowly.
– Adding distinctive graphic elements, fonts, color schemes, etc. lends distinctiveness when combined to a common shape or symbol. Integrate unique flair rather than naked geometric forms.
– Extensive promotion and exclusive use of even very common symbols may build distinctiveness over time, strengthening arguments for protection against infringers. But expect high bars demonstrating source recognition.
– Register trademarks prominently featuring a generic shape/symbol combination early to help establish rights for enforcement against confusingly similar marks entering commerce later.
– Consider all potential generic or descriptive meanings of shapes and symbols beyond source indication to avoid overclaiming rights. Concentric circles could indicate bullseyes and targets, not just Target® stores. Arches may denote architecture first before recognizing McDonald’s® Golden Arches.
No legal precedent yet grants registered rights in singular standard emoji or emoticons. But creatively stylize these in branding materials rather than relying on plain Unicode characters. And select logos mindful of commonplace meanings for shapes and symbols beyond brand identity. Building distinctiveness and avoiding consumer confusion remains key to smooth trademark enforcement.
With strategic design and promotion choices, brands can incorporate universally recognized geometric forms, symbols and icons as recognizable branding assets. Just beware overreaching to claim exclusive rights eroding the public domain. Our shared visual language depends on keeping common shapes and symbols free as building blocks for all in commerce.