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.
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.
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.