A trademark is an emblem or phrase that uniquely identifies goods and services in the marketplace. Trademark rights attach immediately upon use of a mark to identify goods in commerce, but registration at the state and federal levels is a way to put the public on notice of a person's claim to rights in the mark. A painting may only be subject to trademark protection under limited circumstances.
Types of Marks
A trademark can be a word, phrase or other kind of symbol that lets consumers know which company produced the goods in the marketplace. A swoop, golden arches and even a particular shade of pink on fiberglass insulation are all well-recognized trademarks that are valuable because consumers associate them with particular brands and the quality those brands stand for. Service marks are the same kind of symbols, indicating the work of a service company rather than products for sale. For example, a phrase associated with a household plumber's service known for removing drain clogs can acquire trademark protection for the phrase as a service mark.
Trademark and Copyright
While trademark laws protect emblems that identify commercial goods and services in the marketplace, copyright law protects the rights of a person who produces original creative works, including paintings, film, music and literary works. Ordinarily, a painting would not be used to identify goods in the marketplace. Hence, a painting would not be eligible for trademark protection. Copyright protection, however, arises as soon as the artist transforms the idea of a painting into a tangible item, such as a preliminary sketch, outline or rough draft of the image. As the copyright holder, the artist may prevent others from displaying, reproducing and selling the painting without the artist's permission.
When a painting serves as the basis for a logo, label or other symbol identifying a product or service in the marketplace, it can receive trademark protection in addition to the artist's copyright. A renowned example of a trademarked painting serving as a company logo is the image of Nipper called "His Master's Voice," a painting by English artist Francis Barraud, featuring a stray pup with its head cocked listening to a gramophone. Producers of artisan food and wine products as well as artistic services, like pet portrait painters, commonly use a painting as a logo or product label. When used for this purpose, a painting can fall under the protection of trademark law.
Common law trademark protection arises as soon as you begin to use an image, such as a logo or painting, in conjunction with a business offering goods or services. A thorough search of state and federal trademark databases will help ensure the image you are using is not so similar to a trademark in use by another business that it constitutes trademark infringement. Registering your trademark with your state or the U.S. Patent and Trademark Office helps to put the public on notice of your trademark and prevent others from using marks similar to yours. Federal trademark registration may take over a year and cost several hundreds of dollars, but can provide enhanced protection for your trademark.