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ARTICLE · 21 NOVEMBER 2010

Does the Evolution of a Design Mark Affect Your Trademark Rights?

Nutter McClennen & Fish LLP
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Beware trademark creep! "Trademark creep" is a catchy term for one of the dangers that stalks any trademark (or service mark) that consists of only a design (as opposed to words) or of both word(s) and design elements

United StatesIntellectual Property
Nutter McClennen & Fish LLP'S Intellectual Property Practice Group
Nutter McClennen & Fish LLP'S Intellectual Property Practice Group
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Originally published on 16th November 2010.

Beware trademark creep! "Trademark creep" is a catchy term for one of the dangers that stalks any trademark (or service mark) that consists of only a design (as opposed to words) or of both word(s) and design elements.

For some immutable reason, the design elements of a trademark tend to evolve over time, and "creep" refers to the situation where such change is unintentional or unnoticed or both. An image file gets flipped over by mistake and the fish in the trademark that used to swim to the viewer's right turned around and now swims to the left; words stacked vertically to begin their trademark life one day do not fit on a brochure so they get rearranged onto a horizontal line, and everyone likes the new look; colors get mixed up, the blue circle and the red square become the red circle and the blue square. Why does this happen? 

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