Dear Olympics: Don’t Steal My Logo!

The Who, What, Where, When, Why, And How Of Trademarks

By Erik J. Heels

First published 9/18/2015; Clockwork Design Group Blog; publisher: Clockwork Design Group, Inc.

In September 2016, the logo for the 2020 Summer Olympics in Tokyo was accused of being similar to the logo for Belgium’s Théâtre de Liège. In the wake of the controversy, the International Olympic Committee (IOC) scrapped the logo and started over ( But did they really need to?

Politically, starting over was a wise move. The Olympics conjures up images of victorious underdogs, good sportsmanship, and family values – not trademark bullying. This was not, after all, the first time a summer Olympics logo has been embroiled in controversy. In June 2007, there was ample controversy surrounding the 2012 London Olympics logo, including that it looked like cartoon character Lisa Simpson ( In January 2011, the 2016 Rio Olympics logo created controversy for being strikingly similar to the logo of Colorado charity The Telluride Foundation (

But what about legally? Did the IOC really need to abandon its proposed 2020 logo? Before looking at that specific question, let’s consider the roll of trademarks generally.

Why Register Trademarks?

The purpose of a trademark is to identify products and services with their providers. In other words, to be a “mark” of a “trade.” Best practices for trademarks include registering the trademarks that you are using and using the trademarks that you have registered. In the US, registration gives the trademark owner numerous important rights, including the right to exclude competitors from using confusingly similar trademarks for similar products and services.

Where Should Companies Register Trademarks?

In general, companies should register trademarks in the countries where they are doing significant business. If you have more than $500K/year of business in one country, then it makes sense to register your trademark in that country. Presumably the IOC does significant business in multiple countries!

Who Can Register Trademarks?

In the US, a trademark applicant must be using its trademark in interstate commerce (i.e. in multiple states or countries) in order to qualify for federal registration. So while a trademark law firm in Boston qualifies for federal protection for its trademarks (because its practice is federal law and its clients are located nationwide and worldwide), a criminal defense law firm in Texas does not qualify for federal protection (because its practice is state law and its clients are located only in Texas).

There are about 30 million companies in the US, but there are only about 4 million trademarks in the United States Patent and Trademark Office (USPTO) trademark database. The average company has about four trademarks: their name, their logo, the name of their primary product or service, and their tagline. This means that there are only about one million unique companies in the USPTO’s trademark database. Put another way, about 97% of US companies (29 of 30 million) have filed no trademark applications at all.

In the Internet age, it is likely that many companies’ products and services are being advertised and sold across state lines and that, as a result, many more companies qualify for federal trademark protection than file.

What Can Be Registered As A Trademark?

A trademark is anything that identifies the source of particular products and services. While “anything” can include oddities like colors, scents, and sounds, the vast majority of trademarks fall into two basic categories: words and logos. Of the 4 million trademarks in the USPTO’s database, about 70% are word trademarks (mark drawing codes 1, 4), and 30% are logo trademarks (mark drawing codes 0, 2, 3, 5).

Fewer than 300 total trademarks are of type “other” (mark drawing code 6), which mostly includes sound trademarks, including Darth Vader breathing, Homer Simpson’s “D’oh!” exclamation, and the famous NBC chime sound.

How And When Should Companies Register Trademarks?

Ideally, a company would conduct a trademark clearance search after choosing – but before using – its trademark. It is much easier to change a name before launching a product or service than after. And it is much easier to avoid trademark conflicts if you do your homework and conduct a proper trademark search. It can cost $50K or more for a startup to rebrand, but it costs about a tenth of that to protect its name.

Searching word trademarks is relatively straightforward.

Searching logo trademarks, not so much. The two best options for searching logo trademarks are the USPTO’s database and image-based search engines (sometimes called reverse-image search engines).

The USPTO publishes the US Trademark Design Search Code Manual, which assigns six-digit numbers (design search codes) to text descriptions of various graphic elements. Considering the 2020 Tokyo Olympics logo controversy, would the vertical line that forms the “T” in both logos be characterized as a rectangle (design code 26.11), a quadrilateral (26.13), or both? Does it matter that both logos may be characterized as “geometric figures forming letters, numerals or punctuation” (design code 27.03.01)? What if a similar trademark had all of the same elements but was not intended to form the letter “T”?

If you craft your logo trademark search too broadly, then you’ll have hundreds (if not thousands) of trademarks to review. If you craft your search too narrowly, then you’ll likely miss something important. A search for “plain single line circles” (design code 26.01.02) and “plain single line rectangles” (design code 26.11.02) yields, for example, 2795 results.

And how close is close enough? If you were the IOC, would you be concerned about any of these logos?





And if you are familiar with Boston, then you may be surprised to learn that the first logo above is not that of the MBTA! (Click on any logo to see its corresponding owner.)

If you were the IOC, would you be concerned about a theatre in Belgium? In the US, in order for the legal standard of “likelihood of confusion” to be met, both the trademarks and the products/services need to be close enough. Certainly the “T” portion of both logos are similar if not identical. And both the theatrical arts and sporting events are forms of entertainment. Is that enough? I think that if the Belgium theatre had been able to register the “T” portion of its logo alone, then certainly it could make a strong case for likelihood of confusion.

Even if you could search all 4 million trademarks (including about 1.2 million logos) with confidence, you would only be searching the tip of the trademark and logo iceberg, since there are many more logos in use than in the USPTO’s database. Fortunately, image-based search engines can provide results that may not be in the USPTO’s database. Google Images search can help find exact copies of images as well as images that are “visually similar” (whatever that means). TinEye reverse image search is another good way to find exact and similar versions of images.

Is Your Logo At Risk?

Anyone with a logo and customers in more than one state should consider registering their logo as a trademark. Anyone hiring a designer to create a new logo should consider the trademark implications of the new logo. For example, do you really want horizontal, vertical, and square versions of your logo? Each of those is a separate trademark that would need to be registered separately. In the old days, when TV and billboards were the norm for logos, marketing professionals were taught that horizontal logos were preferable to vertical ones. In today’s Internet, which is dominated by social media, square logos are the norm. The register-what-you-use-and-use-what-you-register rule gets complicated (and expensive) if you have multiple versions of your logo.

If you have a strong logo, as both Belgium’s Théâtre de Liège and Colorado’s The Telluride Foundation do, then you should keep an eye out for copycat logos and defend your turf accordingly. Just as registered word trademarks protect against words that sound the same, registered logo trademarks protect against logos that look the same. IMHO, the (now rejected) 2020 Olympics logo looks nearly the same as the logo for Belgium’s Théâtre de Liège. If I were a notable person, place, or thing with my own Wikipedia page (such as Belgium’s Théâtre de Liège), then I would complain if the Olympics copied my logo. Even if I weren’t notable then I’d likely complain because, hey, free press!

What Should The IOC Do Differently?

The IOC has filed nearly 200 trademark applications in the US alone, including for games located outside of the US. So presumably the IOC has a clue about trademarks.

Considering how poorly the IOC has done rolling out controversy-free logos, perhaps it should adopt a new approach. Rather than simply announcing that it has chosen a new logo, the IOC should announce a handful of logo finalists. Heck, the IOC could even let people vote for their favorites! Then the IOC would have less controversy and more buy-in.

To be fair to the IOC, the best trademark search in the world likely would not have found the similar logo in this case. In the US, a theatre with one location wouldn’t necessarily even qualify for federal protection. On the other hand, federal protection isn’t everything. Even a company with one store in one state has common law trademark rights that can be damaged by a confusingly similar national trademark.

One thing is for sure, those who know their logos best will spot copycats. Just like art, trademark likelihood of confusion is often in the eye of the beholder – you know it when you see it.

Erik claims to publish the #1 blog about technology, law, baseball, and rock ‘n’ roll at Brevity is not his strong suit.

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Free Your Law Practice’s Computing Budget

Don’t let your software party like it’s 1999.

By Erik J. Heels

First published 9/9/2013; Attorney At Work; publisher: Astin Tarlton and Feldcomm

From 1997 to 2001, I worked for Verio, marketing and selling Internet access and web hosting to businesses. Early on, we had a small marketing budget and relied heavily on direct mail and cold (actually warm) calling. While I was reviewing my sales team’s monthly goals with Buddy, my boss, he asked me, “Do you think you can make this month’s target?” I replied, “Honestly, no, I don’t think we can.” Without missing a beat, he said, “Well, you’d better change your thinking. Because if you don’t believe it, then your team won’t believe it.”

That was great advice from a great mentor. And I’ve been changing my thinking ever since.

About That Law Firm IT Budget…

Here’s how I’ve changed my thinking about my IT budget over the years.

In the 1990s, I purchased three things: (1) sturdy hardware, (2) local storage (hard drives and the like) for my data, and (3) boxed software. Because computer hardware was relatively expensive, I would keep it as long as possible, upgrading it along the way, and replacing it only when it broke. I purchased the latest versions of boxed software (often at upgrade “discount” prices) and added storage space, as needed, for my data.

Today, I still pay for three things, but my budget percentages for each have changed considerably.

I still buy sturdy hardware, but I only keep each desktop and laptop computer for four years. Moore’s Law (which, loosely paraphrased, says computing power doubles every 18 months to two years) means that each new computer will be 4x better/faster/stronger than its predecessor. It also means that my hardware costs have decreased over time. For smaller devices (tablet computers and smartphones), I plan for a two-year lifecycle, which dovetails nicely with the typical two-year mobile phone contract. Apple comes out with a new iPhone model about every year, so I end up getting every other model, which is good enough for me.

I also still have some local storage (typically buying the largest hard drive possible for each computer), but I rely on (and pay for) off-site storage and backup for my data (including iCloud, Dropbox and CrashPlan).

But the biggest change has been in how (and whether) I purchase software. Now, the only programs I purchase annually for my law firm are operating systems (Mac OS X, Parallels), database (FileMaker), and billing (QuickBooks). My days of buying boxed software are over. Today, I rely on free software on the desktop, in the cloud, and on my mobile devices.

It never ceases to amaze me that lawyers (and law firms) continue to pay yesterday’s prices for yesterday’s technology, when much of today’s technology is available at today’s prices (often free). It’s 2013, and if you’re a lawyer starting a law firm, then you shouldn’t be partying like it’s 1999.

Free Desktop Software

I am unapologetically a Mac guy, although I started my law firm as a 100 percent PC shop. But I can also tell you, unequivocally, that your data doesn’t care whether it was created on a Mac, PC, or Linux computer; in the cloud; or on a smartphone.

No matter what system you purchase, chances are it comes with an operating system, web browser, mail client and more – all of which you didn’t have to pay extra for. But you don’t have to stop there.

Consider office productivity software. In January 2003 (over 10 years ago), my law firm switched from Microsoft Office to OpenOffice. We used to pay $500 per person per year for Microsoft Office. We now pay $0 per person per year for OpenOffice. Most people use only a handful of the features in MS Office anyhow. In the first few years of its lifetime, MS Office added features that made the upgrade cost worth it. In the past 20 years, not so much.

So, while it is true that OpenOffice does not have all the features of Microsoft Office, OpenOffice has proven more than good enough for my firm.

Free Cloud Software

There is also plenty of free cloud-based software that can be at least a starting point for lawyers. For email, you can use the free version of Gmail, or for $50 per person per year, you can get Google Apps Gmail for your own domain name. Either way, Gmail is a very good option for email, in part because the spam filtering is so good. On the downside, because Google is so big, they often change features or abandon products despite an active user community. Recent changes to the reply and compose functions in Gmail caused an uproar in the Gmail user community. And Google recently abandoned Google Reader, which many people (including me) relied on to aggregate RSS feeds from blogs and other websites.

Apple’s iCloud service allows you to sync your content across multiple devices. The free version includes 5GB of storage, and you can purchase additional storage in increments of 10GB for $20 per year.

For an OS-agnostic syncing service, you can try Dropbox, which gives you 2GB of free storage, or you can upgrade to 100GB for $10 per month.

And if you are in the business of providing customer support to multiple computer users (think co-workers, friends, family), you may want to consider the remote-control service LogMeIn, which has both a free and a paid version. The Pro service has more features and costs about $70 per computer per year. (If you’ve ever needed to help out-of-state relatives with computer problems, then LogMeIn is the life-saver you’ve been looking for!)

Then, of course, there are all of the free social networking services, including LinkedIn, Facebook, Twitter, and Google+. Of these, only LinkedIn follows the free/paid model of other cloud services, but the others will likely add this feature in the future.

What all of the above have in common is that I started with the free version and migrated to the paid version.

And, of course, there is also plenty of free software included with any good smartphone, with mobile-specific functions such as maps, music, shopping, and much more.

Pay for What You Value

Next year marks my 30th anniversary of being on the Internet. My thinking about computer hardware and software has changed a lot. Through all the changes, though, one thing has remained constant: I have always paid for what I valued.

So while my spending on hardware has remained more or less constant, my spending on data (in particular, cloud-based backup and syncing services) has increased, and my spending on software has decreased.

I recently calculated the computer cost per person per year for my law firm, and it has gone steadily downward in the 12-plus years I’ve been running the firm. In short, I’ve changed my thinking about my computer budget. Buddy would be proud!

Erik J. Heels is a trademark and patent lawyer, Boston Red Sox fan, MIT engineer, and musician. He blogs about technology, law, baseball, and rock ‘n’ roll at