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BH
BH, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 313
Experience:  IP and Entertainment Attorney
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I am thinking of using an old brand / logo , not

Customer Question

I am thinking of using an old brand / logo for gasoline, not in use since the 1950s. It's a very very obscure brand of gas. No trade***** *****sted in the database, probably too old to be listed there anyway. I feel relatively comfortable using it. I haven't researched copyright. I'd use it for reproducing graphics for nostalgic gas pump restorations, maybe it could be used for other artwork use as well. Would it be of benefit to me to trademark the logo? Often once a logo like this becomes visible others will copy it as well and use it too, most likely using the graphics I prepare from the obscure original material.
That's not the end of the world, but it might be nice if I was the only legit source because the graphic is killer. I doubt if I ever could buy the copyright from anyone, or even find who that would be. My assumption is since it's not my original artwork I can't copyright it, but I suppose I could alter it slightly but it's great as is.
Just curious if there's anything worth doing other than just use it and let me get copied.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  BH replied 1 year ago.
If the work was created after 1923 (and met certain requirements) it would not be in the public domain. That would mean that in order for you to use it, you would need to obtain a license from the copyright owner or change it enough that your use would be considered a "fair use" as a defense to copyright infringment. If it is a company logo, the copyright would most likely be owned by that company or its successor. If the company was not acquired and no longer exists, the copyright might have revered back to the owner. All this to say that your use of the logo might not be without some copyright risk. You are correct that you cannot copyright the logo as is due to the fact that you did not create it. You may, however, be able to claim a defense of "fair use" if your work is transformative. The determination as to what is transformative is a subjective analysis that really comes down to the court's interpretation. Here is some more information on what has and has not be considered transformative: http://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.htmlIf your work is indeed truly transformative then you would be able to claim a copyright in the derivative work but not the original. Finally, there may be certain common law trademark rights associated with the mark but it would only be in the category that the mark was originally used and generally only lasts if the mark is actively being used. Be sure that you are not replicating antiques and trying to sell them as originals. Let me know if you need further information.
Customer: replied 1 year ago.
Thanks for the info. I read the info on transformative, I don't think that works for this use but maybe. Would you consider going from a commercial service station use to a collectible non-functional gas pump as transformative? I could package the item for non functional use?My understanding is that typically, in this situation, the gas distributors buy each other over and over again, creating a complex buried copyright property. If a company actually owns the copyright to this day, they don't know it or even care. It's not on there radar. Contacting them leads to a typical "no response" from others I've talked to about this. Maybe one of those better off not asking situations. I'm assuming most likely response would be a cease and desist order if I were to be discovered and they happened to actually care? And by the way, the items are marked as repop, not trying to defraud anyone, just trying to get to use these cool brands again for collectible, restoration purposes.
Expert:  BH replied 1 year ago.
To be transformative you would need to change the logo - and not just a de minimis amount. You may be correct that your risk is relatively low if these marks are no longer active and no one is monitoring them. You are also correct that they would likely send a C&D letter but those do often come with a request for money in exchange for a settlement. At the end of the day it is cheaper for them to take a small settlement amount then to pursue it in court.
Expert:  BH replied 1 year ago.
When determining your appetite for taking on this risk, note that each time you use the logo it is a separate infringement which entitles them to damages. If the logo was registered with the copyright office (which you can search by going to www.copyright.gov) they would be entitled to statutory damage for each instance of infringement (rather than actual damages) which can be substantial (it is a sum of not less than $750 or more than $30,000 per infringement as decided by a court).
Expert:  BH replied 1 year ago.
Please let me know if you need any additional information. If you are satisfied with my answer, please rate it so that I may be credited for my time.
Expert:  BH replied 1 year ago.
Thanks!

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