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When is a moving logo or image protectable as a trademark?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our Northern California law firm, we represent people and businesses seeking trademark protections for their unique branding strategies, including words, phrases and logos used to identify their goods or services. While usually this brings to mind product names or unique logos, we have talked here before about less common types of trademarks granted for color, sound and scent associated with particular products or services. 

Today we will talk about another unique kind of trademark that is also relatively uncommon: the motion mark. When a moving image functions as a mark by distinctly identifying the source of a service or product, it may be eligible for protection as a registered trademark.

An example of a well-known motion mark is that of moving floodlights pulsing back and forth the dark sky to identify a 20th Century Fox film.   

Procedural challenges 

Applying for a motion mark with the U.S. Patent and Trademark Office or USPTO can be complicated. The applicant and legal counsel must consider the clearest way to present the moving image for consideration by the examiner. 

The Trademark Manual of Examining Procedure or TMEP, based on federal regulation, requires either a drawing of the image at a "single point in the movement" or a square drawing with up to five "freeze frames showing various points in the movement, whichever best depict the commercial impression of the mark." The application must also include a detailed description in writing. 

The TMEP provides further that a motion-mark applicant submit a specimen that illustrates the "entire repetitive motion in order to depict the commercial impression conveyed by the mark." The TMEP lists as specimen examples: 

  • Video clip
  • Screen-shot series
  • Still-photo series 

Motion marks for services v. products 

According to the International Trademark Association or INTA, it may be easier to secure registration of a motion mark associated with a service, rather than with a good, because of the difficulty of affixing a moving mark to a static product. Much discussion in the media also centers around the potential future of marks for moving images given advances in technology and use of the internet as a commercial platform.

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