Can I Just Use Their Logo?

Credit: Justin Morgan (Unsplash)

Can I Just Use Their Logo?

What businesses need to know about using logos under Australian law

Imagine this. You are putting together a board paper, a court document, a presentation, a report or a campaign.

You want to show exactly who you are talking about, so you drop in the company’s logo. It feels obvious. It feels practical and a lot of people assume that sort of logo use is always fine because they are not trying to sell goods under that brand or pretend to be the brand owner. In real life, situations like this are not unusual at all and we get them all the time as a law firm.

For example, a consultant might want to put one his client’s logo on the first page of his website. A professional adviser includes a company logo in a due diligence or court-related document so the relevant entity is easy to identify. A community group reuses a corporate logo in protest material so the target of its criticism is unmistakable. In each case, the person using the logo may assume they are “just referring” to the company, so there is no real legal issue.

That assumption can be somewhat risky as Australian law treats copyright and trade mark differently.

A logo can be protected by copyright as an artistic work, and it may also be protected as a registered trade mark. The fact that one legal issue may be resolved does not automatically answer the other. What we are saying is just because there might be trade mark infringement, that does not mean there is no copyright problem.

Under the Trade Marks Act 1995 (Cth), the key question is often whether the logo is being used “as a trade mark” — that is, as a badge of origin to indicate who is providing goods or services. If the logo is simply being used to refer to the brand owner, describe the subject of a document, or criticize the company, there may be a strong argument that it is not being used as a trade mark at all.

Sometimes people also look at section 122 of the Trade Marks Act 1995 (Cth), which contains specific defenses to trade mark infringement, but it important to remember that this in itself is not a blanket permission to reproduce someone else’s logo whenever it seems useful.

Copyright is a separate enquiry.

The Copyright Act 1968 (Cth) protects original artistic works, and logos will often fall within that category. Further, Australia does not have a broad United States-style “fair use” doctrine that automatically excuses reproduction in business, legal or informational contexts. Instead, the law contains specific “fair dealing” exceptions for limited purposes, such as criticism or review, parody or satire, reporting the news, research or study, and professional legal advice. If your use does not fit one of those specific exceptions, copyright can still be an issue even where the trade mark analysis looks relatively comfortable.

That is why the Federal Court decision in AGL Energy Limited v Greenpeace Australia Pacific Limited matters. Greenpeace used a modified version of AGL’s logo in campaign material that described AGL as “Australia’s Greatest Liability”. As you can imagine AGL was not happy with the use of its logo in this damaging context and sued Greenpeace for both copyright infringement and trade mark infringement. The case is useful because it shows clearly that the court dealt with the copyright and trade mark questions separately.

Here is a link to a post about this case:

https://sharongivoni.com.au/navigating-the-fine-line-of-parody-and-copyright-infringement/

On the copyright side, Greenpeace was largely successful because most of the campaign material fell within the fair dealing exception for parody or satire under the Copyright Act 1968 (Cth). The court accepted that the campaign was making a satirical and critical point about AGL’s environmental conduct, and that this specific copyright defense applied in most instances. On the trade mark side, Greenpeace also largely succeeded because the court found the logo was not being used as a trade mark. It was being used as the target of criticism, not as branding for Greenpeace’s own goods or services.

In other words, in this case, they were not able to simply say “we’re criticizing a company” and assume that automatically makes logo use legal in every situation. The defense worked for Greenpeace only because of the specific way they used the logo in a clearly satirical campaign, and because the court accepted that most of their material genuinely fell within the parody or satire exception and was not being used as branding for their own services.

That does not mean people can always reproduce logos so long as they say they are making a point.

Greenpeace’s result depended heavily on the specific context and on the fact that parody or satire is one of the recognized fair dealing purposes under Australian copyright law. Many everyday commercial, advisory or administrative uses of logos will not fit that exception. That is why businesses should be careful about assuming that “referential” use is always safe.

The practical lesson is simple. If you want to use someone else’s logo, ask two separate questions. First, from a trade mark point of view, are you really using it as a brand, or merely referring to the company? Using it “as a brand” means using the logo in a way that makes it look like it is your badge of identity – for example, putting it on your own website, brochure or product so it appears to be your logo, or using it in a way that suggests your goods or services come from, or are officially connected with, that company.

Second, from a copyright point of view, do you have permission, or does a specific exception genuinely apply? If you do not work through both questions, you may overlook a legal risk that is hiding in plain sight.

Businesses often get away with limited logo use in practice because the use is minor, sensible and unlikely to trigger a complaint. But that is very different from saying there is an automatic legal right to do it. The safest approach is to assume that copyright and trade mark law each need separate attention, especially where the logo is being reproduced in external materials, dispute-related documents, public campaigns or client-facing communications.

Quick facts about logos and the law

• A logo can be protected by both copyright and trade mark law at the same time.
• A use that is fine under trade mark law can still raise copyright issues.
• Australia does not have a broad US-style “fair use” exception for logos.
• “Parody or satire” is a specific fair dealing exception under Australian copyright law, but it only applies in the right context.

If a logo is being used only to identify the target of criticism, that may help on the trade mark side, but it does not automatically answer the copyright side.

Pause before you paste

When it comes to using logos, the key message is: pause before you paste and get advice if you are unsure.

Sharon Givoni Consulting has been helping Australian businesses with trade marks, copyright and branding for over 25 years, and sees these logo questions all the time. The rules are not always obvious – trade marks and copyright work separately, fair dealing for parody or satire is quite narrow, and what feels like harmless “referencing” can still carry legal risk. If your business or organization often uses other people’s logos in presentations, reports, tenders, court documents or campaigns, it is worth having clear guidance on when that is likely to be acceptable and when you really do need permission or a different approach.

The firm can look at how you are currently using logos, explain the law in plain English, and help you set up simple, practical guidelines so your team is not guessing. That way you can keep communicating clearly, while also staying on the right side of Australian trade mark and copyright law.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.