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November 12, 2008



Trademark law is construed as a means for protecting consumers so that they are not mislead regarding the origin of certain goods or services (and other aspects of marks such as truthfulness).

To some degree it's also a deterrent of unfair competition.

In the example you showed, however, in no way a consumer (or even "a moron in a hurry") would think that the "index" store had any connection with "fedex". Or that the clothes were being sold by "fedex".

From an unfair competition point of view, there is no competition between the "index" chain and "fedex". One sells clothes. The other provides express delivery (and other) services.

These products and services aren't sold to the same customers (in the same context), or in the same place. They aren't used together. Neither are they usually provided and sold by the same company. Etc.

I.e There is no "likelihood of confusion".

The "white space arrow" wouldn't be, in the slightest, a compelling argument before any judge. At least on the grounds stated here.

In some countries and courts, however, strange decisions, or some more ample rights can and have been granted. Even in these cases, I wouldn't think the "white space arrow" argument would be enough to prohibit the use of the "index" mark.

I think you're looking at the "index" mark with the eyes of a designer (nothing wrong with that :-), which surely sees the world in a different way.

But if marks were dealt in such a way, at least there would be much less available marks for use and registration. And plenty of unintended similarities would be forbidden and punishable (lawyers like that), even if no unfair competition or likelihood of confusion were in place.

Check this Dilbert strip:



David Sherwin

Thanks for you comment!

I totally agree with you... From a legal perspective, this would be a long, painful, expensive fight over something that's not definsible and not really a direct business conflict. It's not like DHL stole the FedEx mark in Japan. That would just be... well... silly. :)

However, from a designer's perspective, this kind of logo theft is tied to your level of professionalism. Let's say that you called me up and wanted me to hire you to do some logo designs for a national brand. I look at your portfolio and see this "Index" mark. What does that say about your work, your stance on what makes a compelling brand, and the clients you have worked for? As I'd noted, there's all sorts of homages all over Japan to classic American brands, so this "Index" mark was somewhat par for the course or "clever". But if you're just taking a mark and adding a few new letters to it for the sake of fashion, are you really making your best work?

Designers struggle with these sorts of issues all the time, being inspired by other designs they see in the wild but trying not to blatantly rip off content.

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Hello. I'm David Sherwin, a design leader who's written books that help people become better problem solvers and design thinkers. I’m co-founder of Ask The Sherwins LLC with Mary Payner Sherwin, a training and consulting firm dedicated to supporting the growth and development of design-driven organizations and communities.

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