It’s a graphic designer’s worst fear: you spend hours creating a stunning logo for a client, only to have them run off with the design before paying a dime. If someone is using your logo without permission, either due to nonpayment or because your agreement kept the rights with you, it can be disheartening, to say the least. But is there anything you can really do about it?
If someone is using your logo without your permission, there are several steps you can take to resolve the issue, including registering the logo, double-checking ownership, filing a cease-and-desist or trademark violation letter, or taking legal action.
Fighting a battle over a stolen logo design is costly and time-consuming, but it can be done. Below, we’ll break down the steps required to take action, as well as some suggestions for how to avoid a similar situation in the future.
Can You Sue Someone for Using Your Logo?
While you can sue someone for using a logo that you have legal rights to, it’s a long, stressful (not to mention expensive) process, so if you can settle the matter out of court, that’s usually ideal.
That being said, below are the steps to take if you find out that someone’s using your logo without your permission:
Make Sure You Own the Logo
We know what you’re probably thinking: “Of course, I own the logo, or I wouldn’t be accusing someone of using it without my permission.” But bear with us.
The very first thing you should do if you find out that someone is using your logo without your permission is to double-check your contract and make sure that you definitely have the rights to it.
After all, nothing would be more embarrassing than starting a fight about the theft of your creation if it turns out that it’s not really yours after all. In most cases, you’re going to naturally want to start with the contract.
Do You Have a Signed Contract?
You did have your client sign a contract before beginning work on the logo, didn’t you? And you definitely read anything they may have had you sign, right? Good.
Because, as you doubtlessly already know, it’s super important for freelance graphic designers (and freelancers of all kinds, really) to have ironclad contracts for any and all projects they agree to work on. (Yes, this includes favors for friends. Yes, this includes that nice little old lady who runs the cat cafe down the street.)
We’ll get into the importance of contracts a bit later, as well as how to go about creating a contract for your freelance graphic design business. But, of course, that won’t do much good for your current situation if a client without an agreement has run off with your work.
If you do have a signed contract belonging to either you or the client, take a closer look at it.
Does Your Contract Specify Who Has the Rights?
Now, not all contracts specify who owns the rights of work created, but many do. If, by the way, you currently use an arrangement that doesn’t include a section about rights and licensing, you might want to add that in.
Many artists don’t realize how much they can profit from rights and licensing if they play their cards right, and they end up selling themselves short, frankly.
For the most part, artists generally maintain all the rights for anything they create for a client unless they sign something stating otherwise. The most common scenarios are:
- Signing away the rights ultimately, so the client owns them in an unlimited capacity
- Licensing the rights for limited periods or only in certain capacities
“Work for hire” contracts also give full rights to the client in most cases.
If you haven’t signed anything that would give the client the rights or have their signature on a legal document that proves the opposite, you might have a case. Press on.
Did the Client Pay You?
Here’s another place where a contract may come in handy: payment (or lack thereof). Say you and a client have a contract stating that they’ll own any and all rights to the logo that you create for them. It also states that they must pay half upfront and half upon delivery. You deliver the goods on time, and poof, the client disappears into the night.
Well, guess what? They didn’t fulfill their end of the contract, so that means that the rights to that logo are still yours. If you find that they’re using it without your permission (and without paying for it), then you have just cause to pursue legal action.
Freelancers take a bit of a gamble with every new client they work with since it’s so easy for a shady client to disappear into the night without paying you for your time and energy. The freelance artist’s strongest ally in the fight for security is a well-crafted contract.
A signed contract stating that the client has agreed to pay you money is undeniable proof that you own the logo’s rights if that final payment hasn’t been made.
See What the Logo is Being Used For
If someone is using your logo without your permission and it’s clearly for normal business purposes, they’re clearly in the wrong. But what if they’re not using it in a commercial application and aren’t necessarily profiting from it?
Believe it or not, there are times when people can use your work—even if it’s copyrighted, trademarked, and everything else under the sun—as long as they’re using it in a way that’s consistent with fair use law.
What falls under the umbrella of fair use? Well, these are the main things, according to Nolo’s legal encyclopedia.
If someone is writing an informational piece or filming a documentary or news story about your logo, they’re allowed to use a picture of it. This makes sense since they’re not claiming that it’s theirs; they’re just using it for descriptive purposes.
In many cases, trademarked works like logos can be used freely for works of parody and commentary. Again, this is because the artists making the parody aren’t attempting to claim the symbol as their own, and no reasonable audience would think that that was the case.
In many cases, logos can be used for comparison purposes, as long as:
- The logo isn’t altered in any way, especially in a derogatory manner
- The information provided in whatever the logo is being compared in is probably accurate
For the most part, fair use covers instances in which it can’t reasonably be proven that a company is attempting to imitate a logo (or other trademarked item) or pass it off as their own.
Consult a Lawyer
As you probably guessed, if you’re confident that someone is using your logo without your permission and not in a way that falls under fair use laws, your best bet is to consult with a lawyer about your next steps.
A good lawyer will know inside and out the laws relating to:
- Intellectual property (copyrights, trademarks, etc.)
- Fair use
- Freelance artist rights
Find a lawyer who specializes in such matters—if you can, get a recommendation from other graphic designers you trust. The more experience an attorney has with intellectual property law and fighting for independent artists, the more smoothly the process will go for you.
It’s generally a good idea, by the way, not to contact the person who’s using your logo without your permission directly, instead of going through your lawyer. This way, everything has a paper trail, and you won’t make any missteps that may cost you later.
When you first consult the attorney, they should be able to give you a good idea of:
- All fees associated with the process
- An idea of the total cost based on their rates and the case’s complexity
- The experience they have with similar situations
- Your options (suing is only one way to handle it)
Now, keep in mind that it’s not necessarily reasonable to expect a lawyer to be able to give you an exact figure and timeline because so much of it depends on how the other party handles it.
The other party might stop using the logo with the first cease and desist letter or get themselves a team of powerful attorneys who want to fight with everything they have and draw it out for ages, costing you time and money.
Register the Logo
One of the first things a lawyer will probably advise you to do is register your logo, so there’s absolutely no question about who the owner is.
The United States Trademark and Patent Office’s website has trademark basics and the process involved, but your lawyer should be able to walk you through it.
Even if you own the rights to a logo, if you’re going to be fighting about it in a legal capacity, getting it registered will give you that much more of an argument.
Send a Trademark Violation Letter
Most people are familiar with cease-and-desist letters or have at least heard of them. But not so many people know about the cease-and-desist letter’s friendlier cousin, the trademark violation letter.
Basically, a trademark violation letter lets the other party know that they’re violating trademark rights, so they can’t claim that they were unaware of the violation if they use it in the future. On the other hand, a cease-and desist letter threatens them with legal action for already having used it.
Talk to your lawyer about which might be a better option for your particular case.
File a Cease-and-Desist Letter
Most likely, the first thing your lawyer will want to do is file a cease-and-desist letter, which, as you might have already guessed, basically just informs the other party that they’re committing intellectual property theft and details exactly how that is.
Cease-and-desist letters usually ask that the other party do one of these two things:
- Stop using the property (logo)
- Pay the artist for licensing rights
Alternatively, they can ask that the artist gets the credit for the logo, but since you were hired to create the work, you’re most likely interested in payment rather than in recognition alone.
Depending on the person or business using your logo, a cease-and-desist letter might be all it takes to get them to stop.
If, on the other hand, you’re up against a big corporation, this step might be just the beginning of a very long legal battle. An independent artist from Los Angeles, Tuesday Bessen, found this out the hard way during an expensive battle with Zara, who used her designs without permission.
Seek Alternative Dispute Resolution
If sending a cease-and-desist letter doesn’t solve your problem, but you really want to avoid the hassle and expense of a lawsuit, you might want to consider ADR, or Alternative Dispute Resolution. ADR basically involves using a neutral mediator to help the two parties reach a resolution without taking the case to court.
While this can be an efficient option for solving issues of intellectual property theft, the only caveat is that both parties must agree to it for it to work. If the other party isn’t willing to work with you after receiving your cease-and-desist letter, it might be a sign that they’re not willing to play nice.
On the other hand, they may genuinely believe that they’re in the right and are just as eager as you are to quickly resolve the matter.
Your lawyer will best be able to advise you on how to proceed with alternative dispute resolution if that’s the option you’re most interested in pursuing.
Take Legal Action
If alternative dispute resolution doesn’t appeal to you or the other party doesn’t agree to it, your next step will probably be to take legal action to get the results you want; this will involve getting the court involved, which is a costly and time-consuming affair.
If successful, you might receive:
- An injunction to stop the other person from using your logo in the future
- Payment of what they owe you (licensing fees, unpaid contract)
- Lawyers’ fees
Now, keep in mind that even if you win the case, complete with lawyers’ fees and all, lawsuits are expensive in themselves, plus the time you’ll spend dealing with it instead of making money on other projects.
Plus, there’s no guarantee that the other party will pay you right away, even if the court decides in your favor. That can mean more fighting just to get your settlement.
It’s easy to feel like the little guy up against a big, scary entity if someone—especially a large corporation—has stolen your work.
But keep in mind that a lot of the time, unreputable companies do that kind of thing because they know they can get away with it and that an independent graphic designer or other freelance artist isn’t in a position to fight back.
So if you really don’t want to let it go, resolve to stay in the fight for the long run and do all you can to get what’s right. It will take a ton of work (not to mention expense), but remember that you’re fighting for all the other independent artists out there.
Know When to Walk Away
That’s right; we’re going to contradict the previous section completely. And that’s because every situation is different, and every graphic designer’s life is different.
Maybe you’re a single parent fighting to make ends meet while taking care of your kids and can’t afford an expensive lawsuit right now. Perhaps you’re dealing with other adversity or financial hardship and just don’t have the mental capacity to deal with the stress of it.
If you and your lawyer decide that it’s going to be more trouble than it’s worth, there’s no harm in walking away, either. Chalk it up to a lesson learned, and focus on building relationships with better clients in the future.
How to Prevent It from Happening Again
It would be fantastic if there were a 100% foolproof way to keep people from using your designs without your permission, but that’s just not possible.
So what can you do to protect yourself?
- Put it all in the contract: this includes rights, payments, etc. Have a lawyer double-check it.
- Vet all new clients: see if their online footprint turns up anything shady, and ask mutual acquaintances about them.
- Trust your gut: if something feels off about a client, it’s better to miss out on potential money than to sign a contract with someone who’s going to try and steal your designs.
These simple things will help keep you out of harm’s way when it comes to intellectual property theft concerning logos and any other designs you create.
It’s nowhere near fair that the artist is the one who’s stuck jumping through hoops and shelling out a ton of cash because someone else has decided to steal their creation, but that’s, unfortunately, the world we live in. However, keeping a good lawyer on file and making sure to have all clients sign contracts before you do any work for them will go a long way towards protecting you in the future.