Use of another’s intellectual property is generally prohibited by law. Copyright is an automatic right that exists as soon as a work is created. Trademark protection is acquired when the work is registered on the Australia IP Register. This article explains how another company’s logo cannot be used on your website unless exceptions apply.
What protection does a logo have under Copyright?
The Copyright Act 1968 (Cth) regulates copyright in relation to original artistic works which includes logos. Section 36 provides that a copyright infringement occurs when another person plagiarises a work commercially, without the owner’s permission. Therefore, using another’s company logo on your website could amount to a copyright infringement because it signifies an attempt to reproduce their artistic work.
Exceptions to Copyright infringement
Despite running a high risk of copyright infringement by using another company’s logo on your website, copyright law will make exceptions if you prove that you used the logo for either:
- research and study;
- review and criticism;
- parody and satire;
- news reporting; or
- providing legal advice.
You must show that there was a ‘fair use’ of the logo. That is, you only used the logo to make a specific point and not for commercial gain. Although not about using logos on websites, the case of AGL Energy Ltd v Greenpeace Australia Pacific Ltd  still illustrates this exception. The Federal Court held that Greenpeace’s use of AGL’s logo in a public campaign, creating labels such as “Australia’s Greatest Liability”, did not constitute a copyright infringement. That was because the AGL’s logo was used satirically for parody to make a point about the amount of greenhouse gas emissions it produced.
What protection does a logo have under Trademark law?
Most companies register their logos to receive protection from the Trade Marks Act 1995 (Cth). Because of this, it will be a clear infringement of trademark law if their logos are used on your website without permission.
Exceptions to Trademark Infringement
However, s 122 of the Trade Marks Act expresses that a trademark will not be infringed upon if used in ‘good faith’. Good faith can be that you used another company’s logo on your website:
- To indicate the kind, quality, quantity, intended purpose, value, geographical origin, or other characteristic of goods or services;
- The intended purpose of the goods or services; or
- For the purposes of comparative advertising.
In Gillette Co v Pharma-Goods Australian Pty Ltd , the court found that Pharma did not infringe upon Gilette’s trademark “Sensor” line by using the phrase, “No Frills Moving Blades would fit Gillette’s Sensor handles”, on their line of razors. That was because they used Gillette’s trademarked “Sensor” handles to describe their own product. It was fair of them to mention Gillette in order to explain how their product was not the same as but nonetheless suitable for Gillette handles.
This case is compared to Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd , where the court found that there was an infringement of Wellness’ registered trademark. Prio Bio used the trademarked words “Living Water” on their product and it did not describe the kind, quality, quantity, purpose, or value of their product as unique from Wellness’.
While you generally should not use another company’s logo on your website without asking them first to avoid liability for trademark infringement, you may argue the defence of ‘good faith’ if you use their logo to distinguish your own goods and services.
You cannot use another company’s logo on your website unless they have allowed you to do so. Copyright and trademark law protects most logos and exceptions are complicated defences to argue. Despite this, exceptions do exist and you will get away with using another company’s logo on your website if it was a ‘fair use’ of material or you acted in ‘good faith’. If you have any queries or intellectual property concerns, reach out to an expert at OpenLegal. Call 1300 337 997 or fill in the form on this page.