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Old 09-15-2005, 09:51 AM   #1
Bo Aakerstrom
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Default When are two designs not the same!?

I have a potential client ( you'll see what I mean in a minute) who "borrowed" a design which has been used as a trademark for her business. She approached me suggesting that by altering seven things in this design it would be O.K. to used the "new" design, whilst it would still be nearly identical to the current one.

I for one don't feel totally at ease with this line of reasoning and would appreciate some enlightened feedback before I go ahead.

By the way, the design in question was as far as I am aware not used as a trademark, but nevertheless, it is someone else's work.
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Old 09-15-2005, 11:03 AM   #2
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Bo:

I for one don't feel totally at ease with this line of reasoning

For you, the imprtant thing is whether the design can be copyright (probably not) or if the design is registered, although you must also think about whether the imitation could be regarded as 'passing off'.

Appropos passing off, Quark's latest 'Q' is remarkably like Quickfit & Quartz's 'Q', which was a registered trademark.

   
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Old 09-15-2005, 11:25 AM   #3
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Quote:
Originally Posted by Bo Aakerstrom
I have a potential client ( you'll see what I mean in a minute) who "borrowed" a design which has been used as a trademark for her business. She approached me suggesting that by altering seven things in this design it would be O.K. to used the "new" design, whilst it would still be nearly identical to the current one.

I for one don't feel totally at ease with this line of reasoning and would appreciate some enlightened feedback before I go ahead.

By the way, the design in question was as far as I am aware not used as a trademark, but nevertheless, it is someone else's work.
I am a little confused. Is this a logo that she uses as a trademark, or not? (You say both things.) How did she “borrow” it — didn’t she have the right to use it?

Anyway, now she wants you to knock it off with 7 little changes and thinks that will somehow magically make it not the original designer’s work? How so, I wonder?

Is the original designer claiming rights to the logo? If so, this could be a copyright issue (or the designer may be asserting that). If it were subject to copyright, doing anything at all starting from the original design would be derivative use, a right reserved to the original creator.

I have often heard people assert that if you change enough details, you can circumvent copyright. So far as I have read (but I am definitely not a lawyer!), that is simply not true. You could make it hard to see or possibly hard to prove, of course, but it doesn’t sound even as if she wants that.

The sad truth is that many aspects of graphic design are not protected by copyright. But you certainly can apply your own ethics, and it sounds to me as if you already think this proposition stinks. (To me, too — to the extent I understand what is going on.)

Sounds as if this is either a case of thievery, and she has been caught and is trying to weasel out of it. Or it is a money issue — she doesn’t want to pay the person whose work she has been benefiting from.

Hope that helps.

   
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Old 09-15-2005, 12:36 PM   #4
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My apologies if I wasn't clear, it is currently used as a logotype. Where it originally comes from I simply don't know.

I guess I already had made up my mind not to go ahead as I do not agree with the principle of what is suggested to me, I just wanted an educated view on the matter.

According to the UK Patent Office it is apparently increasingly common for even larger corporations to borrow, read; steal, designs from other countries to use as logotypes and trademarks.

I suppose most can afford better lawyers than their counterparts from the developing world...
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Old 09-15-2005, 01:35 PM   #5
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Quote:
Originally Posted by Bo Aakerstrom
… it is currently used as a logotype. Where it originally comes from I simply don't know.

I guess I already had made up my mind not to go ahead as I do not agree with the principle of what is suggested to me, I just wanted an educated view on the matter.

According to the UK Patent Office it is apparently increasingly common for even larger corporations to borrow, read; steal, designs from other countries to use as logotypes and trademarks.

I suppose most can afford better lawyers than their counterparts from the developing world...
I certainly agree with you on principle.

Did you see the thread about the new Quark logo (speaking of logos and similarities)? In Quark’s case it appears that the similarity came about by inadvertance.

   
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Old 09-15-2005, 02:06 PM   #6
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Did you see the thread about the new Quark logo
I sure did! If a simple design is created from scratch, it is obviously possible that it could be exactly like what someone else already done.

You could subconsiously recreate a design you don't even remember seeing as well. (Would that one stand up in court, I wonder!)
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Old 09-15-2005, 05:03 PM   #7
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Quote:
Originally Posted by Bo Aakerstrom
If a simple design is created from scratch, it is obviously possible that it could be exactly like what someone else already done.

You could subconsiously recreate a design you don't even remember seeing as well. (Would that one stand up in court, I wonder!)
Actually, if copyright is the issue (and that is different from trademarks), if two people do the identical thing but can demonstrate that neither saw the other one’s work, both could be protected.

It is originality, not result, that determines. I think that is the essence of why your potential (probably non-) client’s approach will not fly.

What’s odd about the Quark and Scottish Arts Council logos is that one of these identical images is meant to stand for a Q, the other for an A.

Oh, well.

   
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Old 09-16-2005, 05:36 AM   #8
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Bo,

You should contact the designer of the new Quark logo for advice on stealing someone else's design and passing it off as new and original.

;-)

Were I in your position I would go with my gut. If it doesn't feel right, don't do it.
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Old 09-16-2005, 11:54 AM   #9
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Do you remember the NBC logo fiasco? They paid millions for a new logo, a stylised N, and then found out it was identical to the Nebraska PBS system/station. Of course, since both companies were in the same business (which does not apply with Quark) the conflict could not continue and NBC was force back to the peacock logo.

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Old 09-16-2005, 12:16 PM   #10
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Do you remember the NBC logo fiasco? They paid millions for a new logo, a stylised N, and then found out it was identical to the Nebraska PBS system/station. Of course, since both companies were in the same business (which does not apply with Quark) the conflict could not continue and NBC was force back to the peacock logo.
Not true. For one thing, NBC paid less than a million bucks; it was in 1976, when a buck was still really a buck, but it was around half a million.

And NBC prevailed. They paid off the PBS station (that did cost about a $million), and got exclusive rights to the N logo, which they used for years, often in conjunction with a stylized version of the peacock.

The Nebraska station took NBC’s money and developed a new logo based on a lowercase n. (A spokesperson said they weren’t particularly happy with the old one, anyway — but they had paid $100 so gritted their teeth and used it until they swapped their rights for cash and some sexy high-tech equipment from NBC.)

   
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