Who owns the rights to the logo?

[C Emblem]

Jurisdiction

Virginia

I designed a logo in the 1970s for a radio station. The radio station is long gone, but the logo was a big hit and is still printed on t-shirts and stickers, etc.

I'm trying to figure out what rights I have to the artwork. I don't believe it was trademarked and I don't recall ever signing rights to the owner at the time.

A gentleman contacted me in 2010 who had trademarked the call letters of the station who wanted me to give him the right to create a version of the logo and I told him I couldn't because I didn't control them--and didn't know who did.

I told him, to my way of thinking, I conveyed the rights to the logo to the owners of the station when I created it and handed it over to them. In other words, that I didn't claim ownership.

Since then, his trademark has expired, he passed away (2013), and the website he was using it for has closed down.

Can I assume I am safe in using the logo to produce memorabilia since I designed it?

 

[adjusterjack]

There are several factors involved, maybe even more than I'm going to suggest, and I might not even be getting my comments exactly right.

1 - If you were an employee of the radio station when you created the logo, it's their logo and you have no rights to it.

2 - If you were not an employee of the radio station but were paid to design the logo it could have been a work for hire and belong to the radio station.

3 - If you were not an employee and were not paid for the work then you might have given the radio station license to use the logo while you retained the rights.

At this point if you plan on using the logo for your own purposes I suggest you discuss the background with a trademark attorney, especially if you will be seeking monetary gain from its use as the estate of the deceased may still have the rights.

 

[C Emblem]

Thanks for that Adjusterjack.

I was not an employee, I was paid for it and I did not sign a work for hire agreement.

Regarding the status, I've been trying to contact the gentleman's widow to ask her about her interests. So I guess I'm on the right track.

 

[zddoodah]

The radio station is long gone

That may be, but the "station" likely was owned by a corporation that may still be around.

I don't believe it was trademarked

The word "trademark" is not properly used as a verb. It seems reasonable to infer that the logo was used to identify the station, which means that the owner of the station almost certainly had trademark rights in the logo. Even if the logo wasn't registered as a trademark, the owner of the station still had trademark rights (registration is not required for trademark rights to exist).

Can I assume I am safe in using the logo to produce memorabilia since I designed it?

Yes, you can. Does that mean it's a good assumption? No, but everything you posted points to it being a relatively safe assumption.

I did not sign a work for hire agreement.

Do you really remember what you did and didn't sign 40+ years ago?

It's important to note that trademark rights result from use of a mark in commerce to identify the source of particular goods or services. It seems likely that the original station long ago abandoned the mark. As for the guy who contacted you in 2010, while his trademark registration might have expired (trademarks themselves don't "expire"), he's obviously no longer using the logo in commerce.

 

[C Emblem]

Very interesting Zddoodah--thank you.

The state corporation commission lists the corporation as "purged"--which it defines like this: "If the entity's status is "Purged," then its existence or registration has been canceled, revoked, terminated or withdrawn for a period of more than 5 years and, under Virginia law, the entity is not eligible for reinstatement or restoration."

So I guess the question becomes: If the original station used the mark in commerce but has now abandoned it, does ownership return to me as the marks creator?

 

[army judge]

If the original station used the mark in commerce but has now abandoned it, does ownership return to me as the marks creator?

The interrogative you posed above can only be answered by a court of law.

Your most direct route to the answers you seek, might be speaking to the deceased man's spouse.

Barring that option, you might try reaching out to the entity's attorneys.

If the logo is being used without interference, common sense tells me that whoever (whatever) owned it have passed on to their final places of repose.

If i were to venture a guess, you might wish to retain an attorney to secure rights/ownership to the logo.

I imagine your efforts would not be impeded.

 

[C Emblem]

Thanks for that Army Judge.

My pursuit is more about love than profit--so I'd rather abandon interest than go through the court. I guess I'll continue to try to reach the widow and see what her interest is.

 

[army judge]

I'll continue to try to reach the widow and see what her interest is.

You might also see if the deceased had any issue during his marriage, should the wife be deceased.

If others are using the logo without interference, you might wish to stake your claim as its designer/creator.

If no one steps forward to contest your assertion, you might have that which you seek, without further impedance on the part of greedy usurpers,

 

[Tax Counsel]

Can I assume I am safe in using the logo to produce memorabilia since I designed it?

For you, the issue when you created the logo was copyright. As the designer of the logo, you would have a copyright in that logo. Assuming that you never transferred your copyright (other than an apparent license to use it by the radio station) you may still have a right to enforce that copyright. You could well have sold your copyright to the guy who wanted to buy in 2010. The fact that you say you thought you sold your rights, though, does raise an issue of what the deal was that you had with that radio station.

Trademark is a distinctly different right than copyright. Trademarks are established by use in commerce. The radio station had a trademark for the logo while it was using it for its business. But that radio station is long gone, and thus it is no longer using that mark in commerce. Thus, that mark may no longer be enforceable if it has not been used by anyone else in commerce since then. The lapse of use of the mark with no intent to renew the use of it results in abandonment of the mark. Lapse of use for 3 years creates a presumption of abandonment. So even if some person/entity bought or otherwise obtained the trademark from the radio station if they never used it they would have no enforceable trademark rights.

Note that the trademark of the call letters is different from the trademark of the logo. If the logo contains the call letters then whomever the beneficiary was of the man who apparently had the trademark for them would could come after you for infringement for the use of the call letters; but if the call letters are not part of the logo then you wouldn't have that problem. But note that simply registering the mark is not good enough. If they guy registered the mark but never used it in commerce, then there would be no enforceable rights in the mark. On the other hand, someone else out there using the call letters or logo might now have an enforceable trademark.

I think you really ought to see a trademark attorney to be sure of where you stand because even if you get the rights to use the call letters from the beneficiary of the man who registered the call letters as a trademark there could be others out there that would have rights in the call letters and/or logo that you need to deal with.

 

[zddoodah]

So I guess the question becomes: If the original station used the mark in commerce but has now abandoned it, does ownership return to me as the marks creator?

No, because you also don't use the mark in commerce. If you were to start doing so, then you might acquire rights in the mark.

 

[C Emblem]

Thank you Tax Counsel.

Haha... as usual MANY things to consider.