Reproduction of logos - copying or independent creation?

In a recent UK court case, a UK bicycle designer and manufacturer, ATB Sales, (ATB) successfully relied on its copyright in its stag's head logo. It was able to get an injunction and at its option damages or an account of profit, against the use of an almost identical stag's head logo by an energy drinks company, Rich Energy, (RE). ATB also got an order to cancel the UK trade mark for the logo registered in the name of one of the directors of RE.

ATB's logo was designed by its employees in 2008, and so was owned by ATB. RE's logo was designed by an external company in 2015. RE used it on its products, its website and in sponsoring the Haas Formula 1 team. It had it registered its logo as a UK trade mark.

While this decision can be appealed it does mean that if it becomes final any further use of the logo by RE will be a continued copyright infringement and also a violation of the court order. This is likely to be a problem for RE in the context of the sponsorship deals it entered into.

The main issue was whether ATB's logo, an artistic work, was copied by RE, and so whether RE infringed ATB's copyright in its logo. If RE's logo was independently created there would be no infringement.

The owner of the copyright in a work has the right to do certain acts in relation to the work to the exclusion of others. These include, amongst other things, making copies of the work and communicating the work to the public including making it available on the internet. This could cover most usages of a logo for business purposes. There would be infringement of copyright if the elements reproduced contain a substantial part of the original work. The reproduction does not need to be a facsimile copy or a copy of the entire device.

To prove copying ATB had to show a connection between their logo and the making of RE's logo and prove that RE's director and the designer could have had access to their logo. There had been no trading relationship between the parties, nor exchange of any company literature where RE could have seen the logo. ATB had no specific proof of copying, except that ATB's logo was available on its website and on the internet (and RE claimed to have undertaken extensive internet research of stags head logos prior to designing their logo).

The Court had to judge whether the similarities relied on were sufficiently close, numerous or extensive to be more likely to be the result of copying than coincidence. The differences were minimal. There was striking similarity in stylisation and aesthetics. The Court held that the consideration of a variety of designs by RE was not inconsistent with the final design chosen being a copy. It did not help RE's case that the court found its witnesses were not reliable and credible and their evidence on independent design was confused and contradictory. There was also no proper information of the design process. The defence that ATB's image did not attract copyright protection did not go in their favour. RE, its director and the design company were held to be jointly responsible for copyright infringement.

Copyright in a work is automatically created when a work is fixed on any medium and copyright in a work can prevent the use of the work in relation to any products or services. It's important to remember that logos which are registered as trade marks are often also copyright works and that the copyright may belong to someone other than the trade mark owner.

It is imperative to keep records of design development history to show independent creation of a design as it can be difficult to rebut allegations of copying if the designs are too similar. In these cases, clear proof of independent creation helps- backed up by a proper contract with the designer.