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In their place, clip art and licensed imagery are an effective low cost solution for presentations, articles, and flyers. However, they have no place in brands and trademarks – these should always be original works where copyright ownership of the brand can be guaranteed to the proprietor. Legal issues abound when such art and images become part of a business’s brands, rather than commissioned original works.

As a patent attorney I view a brand or trademark as being any image, sign, symbol, or artefact which the public associates with the proprietor of a business. A brand tells the public who made the goods, or is offering the services.

We see the “Golden Arches” and we immediately think of the MacDonalds corporation. When hearing the characteristic sound of a Harley Davidson motorcycle most people will think of that proprietor (and yes, Harley Davidson have applied to register that sound as a trade mark in many countries).

I also recognise brands (I’ll use brands interchangeably with trade marks in this article) as being the most valuable asset of most businesses – it is the brands with which goodwill is associated. As a consequence brands tend to be the most fiercely protected and enforced asset of many businesses.

Most patent attorneys will protect a business’s trademarks as comprehensively as possible. In addition to trademark registration, we will also ensure the brand owner also owns copyright in any graphics, and also keep an eye to what can strengthen any common law rights of passing off. When pursuing a would-be infringer, we expect to have the full arsenal of legal entitlements at our disposal.

Where I am starting to encounter more problems is where businesses start to acquire brands in which they do not own the full rights or copyright. Sometimes this may be accidental – such as an unprecedented popularity in an advertising campaign where a particular royalty free image that was used becomes associated with the business (which bank do you think of when if you see a picture of Goldstein)? In this case an image starts acquiring the status of a brand. Unfortunately, unless preliminary steps have been taken regarding ownership then the business has no exclusive rights to that image or theme. Neither does it own copyright, and thus its options are limited in preventing a competitor using the exact same image in its own advertising campaign. Unwittingly you have created an opportunity for a weaker competitor. We presume the advertising agency producing the Goldstein ads tied up all of these loose ends.

Consider an ad created using a licensed image of a girl. If it appeared around the country on billboards and magazine ads, there is a strong chance that the girl in the picture will become associated with the brand. If you don’t have exclusive rights to the image, or copyright ownership, it is going to be that much harder to stop a competitor (or an opportunist) who decides to download and use the same image with their own brand name. While there are legal remedies for imitation, we have created a situation (through using an image under a non-exclusive licence) where it is that much easier for your competitor to imitate, and that much harder to stop them - they can also download and use the same picture in theory. Have you done yourself any favours using licensed images rather than commissioned artwork that you own?