The Review Board of the United States
Copyright Office (the Board) did not warm up to Electrolux’s arguments that its
“Frigidaire Stylized Logo” should be protected by copyright. On August 29, it affirmed
the denial of registration.
A logo can be protected as a trademark and
can also be protected by copyright, if it is original enough. Several corporate
logos are protected by copyright and by trademark.
The Frigidaire logo consists of the word
Frigidaire in blue capital letters. Only the “A” differs from the usual way to
write the letter A, as it is drawn as a triangle filled with a smaller red
triangle. Hardly the stuff Turner Prize dreams are made of.
But copyright laws are not snobbish and
protect masterpieces and more humble works alike, as long as they are original
enough.
Is
the word Frigidaire itself protected by copyright?
Frigidaire is a made-up word. The correct
word to designate an electric ice box is a refrigerator. I may sound a little
pompous writing this phrase, but it is because I am scolding my 15-year old
self [make this my 20-year old self] who was stupefied discovering this fact.
Of course, being French, I grew up calling the family refrigerator “Le Frigo.”
But enough about moi.
Who remembers the copywriter who invented
such a famous name. Anybody? We should, as Frigidaire quickly became part of
the lexicon. I found a scientific 1932
article using it. Google Ngram’s viewer informs
us that the word appeared in 1920, peaked in 1940, and then dropped steadily in
use in English, in use
in English fiction, in French,
and Spanish,
while the word was at its most popular in Italian
in the Sixties.
It is a great word, an original word, more
original that a logo using a triangle instead of the letter “A.” But my brain
must have frozen, as I just remembered that a word cannot be protected by
copyright, and I have thus let go the suggestion that the word Frigidaire
should be protected by copyright..
Let’s
talk a bit about trademark.
Frigidaire is a great word. It could even
be some person’s favorite word. Poets and songwriters have used it.
When Nat King Cole sang “I have stopped my heart like an icy
Frigidaire, for I need to care for no one, that's why I'm thru with love…”
he (exquisitely) did what every trademark attorney dreads the most, he used a
trademark as a generic term.
[Trivia question: which other famous song
from the American song book used the then-trademark “cellophane” generically,
as a compliment to a paramour to boot? Answer is here].
Frigidaire is such a great name for a
refrigerator that it quickly got used for a refrigerator, instead of the
generic name, thus becoming a generic trademark. It is now used
indifferently, Frigidaire or refrigerator.
“Frigidaire” was registered
as a word trademark in 1920 by registrant Frigidaire Corporation of Michigan.
This trademark is now dead, by genericide.
As Frigidaire can no longer be protected as
a word mark, it can only be protected as a design mark. Indeed, the word
Frigidaire in stylized letters in still protected by trademark, in
several versions, also here.
Frigidaire, written FRIGIDΔIRE,
was registered
as a trademark last year. The mark “consists of "FRIGIDAIRE" with triangle "A". This
logo can be a trademark, since what matters is that the logo can serve as an
indicator of the origins of the goods. Trademark laws do not care about
originality.
But copyright laws do, and this FRIGIDΔIRE logo is not original enough, according to
the Board, to be protected by copyright.
The
FrigidΔire logo is not original enough to be protected by copyright.
The Board reminded applicant that it does not
make aesthetic judgments when assessing whether a work can be protected or not,
citing the classic 1903 Bleistein
case. But it is lack of originality which froze the application, not
aesthetics.
The Board used many of the same arguments they
used to deny
copyright protection to Log Cabin Blank
With Screw Eyes and Cafe Door. To resume the argument, Feist requires only a modicum of originality
but the work must “embody some creative
authorship.” The author can use material and forms which are not protected
by copyright, but must do it in such a way that the selection and coordination
of these elements “trigger[s] copyright.”
As in the Log Cabin case, the board
cited § 906 of the Compendium and the
Atari case to assert that the
combination of simple shapes is protected only if “combined in a distinctive manner indicating some ingenuity.” The Board
found that the stylized “A” is a mere “trivial
variation on a letter” and is thus not copyrightable, as it does not “possess more than a de minimis quantum of
creativity”, quoting Feist.
Electrolux, which now owns the Frigidaire
brand, has registered the logo at stake as a trademark, and also wanted to
register it as a copyright. This is good practice, as intellectual property is
valuable and it makes sense to protect it every way one can.
It argued that “the stylized letter “A” represent[ed] a design choice that was
made to reflect the attributes of Electrolux home appliance products, including
having an eye on the future and being innovative, grounded, and stylish.”
However, logos cannot be protected by
copyright if they are not original enough, and the FrigidΔire case should serve
as a warning to companies creating a logo: make sure it is original enough to
be also protected by copyright.
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