Current Cases before the Courts
Over recent years there has been some discussion concerning the intellectual property rights in fonts and typefaces. It’s not a new area of law given that the first printing press started in 1440.
Originally, there were separate metal font moulds for each letter and the letters were placed manually side by side to create the text. The earliest typeface design is considered to be Blackletter, a handwritten script dating back to the 1100s. It was used for the original printed documents to reflect the beautiful, cursive handwriting used by monks.
A font design might be considered to be an artistic work for the purposes of obtaining copyright protection. However, the font would have to be original and a certain minimum level of skill and effort must be expended by the author in order for copyright to subsist. Given the vast number of fonts available, establishing this could be difficult. Even so, there are a number of companies whose business it is to create unique fonts which can then be sold or licensed. These companies or their clients are beginning to start proceedings for copyright infringement in their fonts.
In March 2022, House Industries, Inc, a company that designs fonts started proceedings in the US against a US chemist chain, Rite Aid and its advertising agencies. One of House Industries’ fonts is the Neutraface font, designed by Christian Schwartz. The font is named after Richard Neutra, a well-known architect. The font is a geometric sans serif font, that is one with very clean lines. House Industries obtains revenue by licensing its fonts on specified terms. It claims that the font in Rite Aid’s new branding, infringed the copyright in the Neutraface font. Below is a comparison of the two fonts:
If you look closely, you will see that there are similarities in the “E”, “R” and “A” with the horizontal bar being more than half way down the letter.
A more recent case involves Production Type, a French digital design agency that creates fonts. One of its fonts is with variants including Kreuz Condensed. Kreuz Condensed comes in five different styles including Kreuz Condensed Light. All of the fonts are available to be licensed. In February 2023, Production Type started proceedings against Nike for copyright infringement claiming that Nike is using the Kreuz Condensed Light font without the appropriate licence and has also downloaded and used trial versions of “Kreuz Condensed Regular,” “Kreuz Condensed Medium,” “Kreuz Medium” and “Kreuz Extended Light” font software. The trial versions can’t be used in a commercial context. This is how Nike is apparently using the font on YouTube:
A font design will generally not be registrable as a trade mark. This is because the font itself will not be used as a badge of origin for the relevant goods or services. However, it might be possible to obtain protection for the name of a font if the name is used as a sign to denote the origin of the goods or services. In addition, the picklist provided by IP Australia allows for the claiming in class 9 of goods such as fonts for computer programs, typeface fonts stored in semiconductor memories for use in printers and in class 16 for type carriers for composing type fonts and type fonts for typewriters. For example, HELVETICA, which is a well known font, has been registered by Monotype Imaging Inc in class 9 for goods including “computer software for generating typeface fonts and ornamental designs”.
The Australian design register also shows that at least a few people have tried to register a font design claiming a monopoly in the pattern and ornamentation of a type of font as illustrated in the representations in the application. The publicly available records do not show any currently registered font designs. However, past registrations have included fonts such as and . Interestingly, these all go back to the 1980s.
While the cases mentioned above are still going through the US courts, they are both reminders that anyone wanting to use a font that they have found on the Internet, should check whether a licence is required to download and use the font. For font designers, good records of the creative process and the resources expended in creating the font will be valuable in proving subsistence and ownership of copyright should the need arise.