There are two types of trademarks: word and design.
For example: Mickey Mouse is a word trademark. A drawing of Mickey Mouse can be a design trademark.
Word trademarks are not copyrightable.
However, a design trademark is creative art and can be subject to copyright in addition to being a trademark.
The remainder of this analysis will primarily focus on design trademarks.
The Trademark Office Says No Copyright
The United States Patent and Trademark Office states all trademark applications, even if not registered, are in the public record:"The public may use records of trademark applications and registrations to identify the owner of a trademark and/or their attorneys/representatives. This information is valuable to the public and is often used to perform a clearance search when another party is considering whether to use a mark."
“Trademark applications and registrations are public records.”
Section 37 of the Code of Federal Regulations, section 2.27 states trademark filings open to public inspection. The regulation referring to public inspection, however, may be different than waiving copyright.
Title 35 of the US Code section 2(c)(3) says the patent and trademark office shall not “derogate from the duties and functions of the Register of Copyrights or otherwise alter current authorities relating to copyright matters" and (c)(5) says "In exercising the Director's powers and duties under this section, the Director shall consult with the Register of Copyrights on all copyright and related matters."
From this it is not clear whether a trademark application is a public record because the trademark office cannot infringe upon the copyright office, or whether the trademark office's declaration a trademark application is in the public domain is made with the authority and consent of the copyright office after consulting with the copyright office.
Presuming the agencies are acting within the law, as one (and the law) is required to presume, the answer is if the trademark office states a trademark application and a trademark registration are in the public domain that means they are not subject to copyright.
Additionally, a trademark publication and trademark registration are documents created by the US Government and federally created documents are not subject to copyright and are in the public domain. (17 USC 105) However, federal publishing of copyrighted material created by others will not cause the material to lose its copyright. Whether a trademark publication and/or trademark award containing a drawing submitted by an applicant is a public domain federal work or not has not been addressed by the courts.
Setting aside whether a trademark application and registration are in the public domain, if we assume copyright can apply here are the basic copyright rules:
Pre-1923 trademarks. If a trademark was published before 1923 it is in the public domain for copyright purposes.
Pre-1978 trademarks. If a trademark was published before 1978 without a copyright notice it is in the public domain.
Note that there is nothing preventing a trademark application from including a copyright notice. That said, we have not been able to find one that does. This is a malpractice issue for trademark attorneys who failed to preserve the copyright for their clients designs.
If a trademark was published with a copyright notice between 1923 and 1963 and copyright was not renewed 28 years later, it is in the public domain. Few copyrights during this time frame were properly renewed.
If a trademark was published between 1978 and March 1, 1989, without a copyright notice, and there was no subsequent copyright registration within 5 years, and reasonable efforts were not made to affix a copyright notice to the trademark, the copyright is in the public domain. (17 USC 104).
Interesting fact: the movie Debbie Does Dallas is in the public domain because it was originally released to theatres without a copyright notice. A subsequent copyright registration within 5 years did not create a copyright because reasonable efforts were not made to affix a copyright notice to the versions released to theatres. Although a copyright notice was affixed to VCR tapes sold to the public, even those tapes are in the public domain.
If a trademark was published March 1, 1989, or later, with or without a copyright notice, the design is subject to copyright.
Summary (assuming trademark applications and registrations can be copyrighted):
Pre-1978 trademarks are not subject to copyright. (Unless the trademark application / registration includes a copyright notice. Very rare if a notice exists.)
Pre March 1, 1989, trademarks are not subject to copyright unless the design was registered with the copyright office within 5 years and a reasonable effort was made to attach the copyright to materials filed with the trademark office. Very, very rare for this to have happened.
Related: Are Patents Copyrighted?
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