Is your logo yours or the designer's?

Brand Design: Who is the owner

Most companies hire brand design services from a freelance or a design and advertising agency when they need to improve their image and create a solid corporate identity to connect with their audience and improve their online reputation. 

So far so good. But what happens with those creations? Do you know exactly who owns the rights to them, the client or the designer? 

Legally, a designer who creates a brand, be it a logo or a corporate identity, is always its owner, because they acquire moral rights (which are inalienable) over it as it is the designer’s intellectual creation. 

However, if a client wants to make use of this logo, the rights to do so must be assigned through a contract so that the client obtains the exclusive use of it. A contract that transmits transparency is essential.

Faced with this situation, many doubts that arise about the transfer of rights in the field of brand design and everything that it encompasses. This is why we are going to look at a series of relevant questions on this subject in order to avoid issues.

Trademark design: Is it compulsory to sign a contract for the assignment of rights?

Yes. In order to transfer rights from one owner to a third party, there must be a written contract detailing everything about the use of the design in question. 

Sometimes it will be the client who drafts a document specifying the task and the deadline, among other points, and which will include a section on the transfer of rights. However, if the client does not ask for a signature on this type of document, it should be the designer who proposes an agreement that defines the use of that design and clarifies the conditions.

Therefore, anyone who hires a professional to design their brand should make sure to sign a contract to avoid misunderstandings and be able to commercially use their logo when they want to promote their brand.

Why should you register your trademark?

Usually, once they have accredited the authorship of their design, the designer will cede the rights to the company that has made the order through a contract. 

However, the fact that you have signed this contract does not mean that you have the exclusive right to exploit a brand. To obtain this exclusive right, the only option is to register it with relevant Trademark register in your country of choice. For instance, if you are going to use your brand in any EU country, we recommend registering your trademark in the European Union.

In any case, whether or not the designer grants you all the rights, to avoid appropriation by third parties, the trademark must be registered with the relevant institution. Otherwise, it will not exist, and anyone could appropriate it or use similar and confusing elements.

Additionally, registering your trademark after signing the contract for the assignment of rights will bring you the following benefits:

  • You will get the exclusive right to that design in the marketplace. 
  • You will position yourself above your competitors.
  • You will be protected from third parties who copy you or intend to copy you.

Step-by-step registration of a trademark

Anyone registering their trademark must go through an administrative registration process that includes the following phases:

  • Application (where the representation of the mark is submitted).
  • Publication in the official gazettes (so that others can file an opposition to that registration if the case arises).
  • Approval or refusal of registration.

In short, the law states that for a company or self-employed person to be the owner of a trademark, it is obligatory to register it. If it is not done, any third party could appropriate it.

We therefore advise you to file for registration as soon as possible, before anybody takes advantage and moves forward with the registration of that mark, as has happened on many occasions. Remember that if this happens, you should file an opposition to that registration with all the detailed information (briefing, assignment of rights contract and all the evidence you have) and have specialized help to prove your ownership.

 

Author: Edith Gómez