Can someone use your designs if you do not trademark them?

On Behalf of | Jul 11, 2023 | Intellectual Property

Many creatives pour their hearts and souls into their designs, only to wonder if they need to protect the designs from potential copyright infringements. This question arises because people often confuse copyrights with trademarks. While they both protect intellectual property, they serve different purposes and protect different types of work.

In the world of designs, a trademark safeguards your logo, design or brand name from getting used by others. However, what happens if you do not trademark your design? Are your designs free for others to use? Learning more about these aspects can help you protect your creative works.

Understanding trademarks and designs

A trademark is a recognizable sign, design or expression that differentiates products or services of a particular source from others. These could include logos, symbols or names. On the other hand, designs refer to the visual aesthetic of a product, its packaging or even an online interface.

You do not necessarily have to register a trademark to have some level of protection. Unregistered trademarks have rights under the common law of “passing off,” which can prevent others from falsely presenting your design as their own.

However, proving a “passing off” case can be challenging and usually involves showing that your design has a reputation, the other party is misrepresenting their goods as yours and that this is causing you damage.

The risk of not trademarking

If you do not trademark your designs, others can legally create similar designs and potentially profit from them. While they cannot copy your designs verbatim without violating copyright laws, they can mimic your style or elements of your work. This can lead to confusion for customers and even harm your brand’s reputation.

When you should trademark your design

If your design plays a significant role in identifying your products or services, you should consider trademarking it. A trademark offers strong legal protection and can prevent others from using a similar design to mislead customers. Although registering a trademark can require a significant investment of time and money, the protection it offers makes it a worthwhile consideration for many businesses.

If you do not trademark your designs, they may be at risk of others using them in ways that can potentially harm your reputation and profitability. Therefore, it is important to understand the value of your designs and consider the benefits of securing a trademark.