With reposting, remixing and retweeting, it has become increasingly easy to use or display someone else's work on your website. However, when you use a company's logo on your website, you risk infringing its intellectual property rights. Nevertheless, certain situations allow you to use someone else's work without their permission. This article will explain when you can use another company's logo and where you need permission before doing so.
What is Someone Else's Intellectual Property?
It can be difficult to determine ownership of intellectual property (IP). IP refers to creations of the mind and can range from written material to images and logos. A logo can be registered as a trade mark but may also have copyright protection in certain circumstances.
What is Copyright?
Copyright is an automatic right in certain original works, such as:
- books;
- drawings;
- music;
- performances; and
- images.
This includes the right to reproduce, publish or use the works online. A company's logo is protected under Australian copyright law, as it is considered an original artistic work. Regardless of whether or not the owner uses the © symbol, they still have exclusive rights to their work. In other words, using someone else's logo on your website may infringe on their copyright.
The 10% Myth
Contrary to public belief, no blanket 10% rule allows you to copy material if you change it by more than 10%. Similarly, you do not simply evade copyright infringement by only using 10% of a work without permission.
The test for copyright infringement is whether you have reproduced a 'substantial' part of the work. A substantial part of the work is an important, recognisable, essential part of the whole. Therefore, it is not the quantity of the reproduction but the quality that is considered when determining copyright infringement.
For example, suppose you are copying part of a copyrighted work word-for-word without permission for commercial purposes. In that case, it will likely constitute infringement, regardless of whether you use a large quantity of the work.
When Does the "Fair Dealing" Exception Apply?
If your intended use falls under the "fair dealing" exception, it may not be considered an infringement. "Dealing" in this context means using the copyright material in any way reserved to the copyright owner. Under Australian copyright law, the fair dealing provision allows you to use copyright material without the owner's permission for specific purposes, such as:
- conducting research and study;
- providing a review and criticism;
- making a parody and satire;
- enabling a person with a disability to access the material;
- reporting the news; and
- giving professional legal advice, or during judicial proceedings.
For example, in 2021 Greenpeace targeted AGL in a satirical campaign criticising AGL's poor environmental practices. Although Greenpeace used the AGL logo in the campaign, the usage was considered fair dealing where the logo had been used for the genuine purpose of parody and satire.
Your use must also be 'fair' in the circumstances. For example, when reporting the news, you should only use enough to make the point rather than reproducing unnecessary parts.
If your intended use does not fall under the fair dealing exception, you must legally obtain permission to use the logo.
What is a Trade Mark?
A trade mark is a sign that distinguishes the goods and services of one business from another's. It is a unique sign that is original in the context of the goods and services offered, such as a business:
- name;
- logo;
- slogan;
- smell; or
- sound.
For example, the business name 'Apple' would not be original concerning the sale of fruit but is a unique name for a technology company.
Unlike copyright, you can apply to register your trade mark rights through IP Australia. Although registration is not required, enforcing an unregistered trade mark can be a more costly exercise.
Identifying a Trade Mark
Some key indicators can help you identify trade marks in the marketplace. Firstly, if a business uses a sign or symbol to represent that their goods and services originate from their company, they are likely to use it as a trade mark.
Secondly, if the business is using a 
(unregistered trade mark symbol) or ®
(registered trade mark symbol) next to its sign, the company is
putting the public on notice that they are using the sign as a
trade mark. However, using these symbols is discretionary, so trade
mark rights may exist despite not using the or ® symbol.
Finally, you can check the trade mark register to see if a business has registered rights concerning the sign. You should also complete thorough market research to ensure the logo is not in use as an unregistered trade mark.
How Do I Seek Permission?
If you have identified that the logo is being used as a registered or unregistered trade mark, you should seek the owner's permission before using it on your website. Note that if you operate a marketplace, permission to use the service provider's intellectual property, such as their logo, should be included in the terms and conditions. However, where you cannot obtain permission from the owner, you must refrain from using their logo. This is despite any good intentions you may have to use their trade mark, such as promoting their brand.
What Do I Do After Receiving Permission?
Once you have obtained permission from the rightful owner, you should consider:
- the rights and restrictions in the licensing agreement if the owner is licensing their logo;
- if you are receiving ownership of the brand rights, whether you have a well-drafted agreement and have recorded this assignment with IP Australia;
- whether your depiction or placement of the logo on your website misleads consumers into believing that you are affiliated with the company in a way that you might not be; and
- if you want to change the logo in any way, whether you have the right to do so.
Ultimately, you must comply with the terms of the permission you receive and ensure that you stay within that agreement. Otherwise, your conduct is likely to amount to trade mark infringement, which can carry significant legal penalties if the owners take legal action.
Is There an Exception to Trade Mark Infringement?
In certain circumstances, you may use a company's logo for the purpose of providing a critique. This exception allows for such use because, for trade mark infringement to occur, you must use the company's logo as a trade mark to promote or provide the goods and services similar to those for which the trade mark is registered. If you use a company's logo to provide critique rather than indicate the origin of goods or services, you may not infringe their trade mark rights. However, you should tread carefully, as there is always a risk that the logo's owner may take legal action against you.
Key Takeaways
If you want to use another company's logo on your website, you should assume that the logo is protected intellectual property. Copyright, trade mark and consumer laws will protect most logos. Hence, you should seek permission to use the logo from the copyright or trade mark owner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.