Some of retail’s most recognizable logos consist of relatively simple visual elements: Nike’s swoosh is a stylized version of a check mark, Prada’s emblem takes the form of a triangle, Celine’s Triomphe features interlocking curved forms, and Rolex’s famous crown consists of five points rising from a curved base. These designs have become enormously valuable brand identifiers, but their commercial recognition does not necessarily establish their eligibility for copyright protection.
In a newly-issued decision involving UPS’s brown-and-gold shield, the U.S. Copyright Office addressed whether the designs contained sufficient original expression to qualify for copyright protection. On October 30, the Copyright Office’s Review Board affirmed refusals to register two versions of the UPS shield, one consisting of the shield alone and another incorporating the company’s lowercase lettering.
UPS argued that the designs warranted copyright protection because they reflect numerous creative choices, including the shield’s curved contours, color treatment, and arrangement of elements.
However, the Board disagreed, finding that the designs combine familiar geometric shapes, conventional gradient shading, and ordinary lettering. Viewed as a whole, the Board found that the selection and arrangement of the designs’ elements is “insufficiently creative to warrant copyright protection because the Works combine only a few elements and in a manner that is standard or garden variety.”
The Board also rejected UPS’s reliance on the creative choices underlying the designs, explaining that copyright protection turns on the resulting expression rather than the effort or decisions involved in producing it. The Board distinguished judicial decisions involving video game graphics and a fabric design that UPS referenced in support of its bid to register its designs and reiterated that individual Copyright Office registration decisions carry no precedential weight.
Building an IP Arsenal
For fashion and retail companies, the Board’s decision raises a practical question: Why pursue copyright registrations for a logo when trademark rights – and registrations – may already exist and potentially last indefinitely?
Trademark law protects qualifying indicators of source, with infringement claims generally requiring a showing of likelihood of consumer confusion. Copyright law, on the other hand, protects original expressions and can provide a separate basis for challenging infringing reproductions without a need for consumer confusion. That can expand enforcement options where likelihood of confusion may be difficult to establish. Federal trademark dilution law also allows for claims without a showing of likely confusion, but only for marks widely recognized by the general consuming public of the U.S., which is not a low bar.
At the same time, copyright registration offers additional enforcement advantages. Subject to the timing requirements of 17 U.S.C. § 412, registration may make statutory damages and attorneys’ fees available, with statutory damages particularly useful when actual damages and an infringer’s profits are difficult to establish.
THE STRATEGY: For brands in the early stages of developing visual identities, the UPS decision points to the value of assessing copyright eligibility alongside trademark clearance and registration. A logo may function as a distinctive trademark while lacking the original authorship necessary for copyright protection.
Counsel should assess whether a logo’s individual graphic elements or their selection and arrangement contain sufficient original authorship, in addition to evaluating the design’s distinctiveness as a trademark. Where copyright protection is unavailable, enforcement will depend on the scope of the brand’s trademark rights and other applicable claims, including false designation of origin and unfair competition.
T he UPS decision does not address the company’s trademark rights in its shield or establish that minimalist logos are categorically ineligible for copyright protection. But it reinforces a fundamental distinction: Even a commercially established logo must independently satisfy copyright’s originality requirement to qualify for protection.
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