A judge has dismissed a claim brought against a Prince George-based graphic designer over a concern the logo she designed for a local construction company may have infringed on the intellectual property rights of Harvard University.
In December 2018, Hayer R.Constructon Firm Inc. had hired Kimberly Hayhurst to "render marketing, branding and graphic design services," Provincial Court Judge Judith Doulis summarized in a reasons for judgment issued Oct. 17.
By spring 2019, Hayhurst had delivered a corporate logo consisting of a "stylized three-dimensional form of the letter 'H' using an isometric typography."
Hayer "approved and accepted" the logo but in fall 2019, the company's president, Robin Hayer, came across a logo also consisting of a three-dimensional stylized “H" while on Instagram and "instantly though it was someone reposting his materials." He then determined it was associated with the Harvard University School of Design in Cambridge, Massachusetts.
"Out of an abundance of caution," Hayer abandoned the design, notified the Harvard University trademarks program of his concerns and intention and filed a notice of small claims against Hayhurst and her firm, Hey K. Marketing.
"The two logos were extremely similar, but not identical," Doulis remarked and went on to find that Hayhurst did her due diligence when it came to determining whether similar designs were being used by others.
Hayhurst took a snapshot of the image, uploaded it into Google's automated internet search engine, then conducted searches of the image as well as its reverse. She also undertook a text-based search and carried out the searches both before and after creating the logo.
Although it took "dozens of hours," none of the efforts produced any similar logos.
Doulis went on to note that the parties' did not specifically agree that Hayhurst would conduct trademark searches on the logo. Had that been the case, Hayhurst would have had to sub-contract that aspect to a registered trademark agent and would have charged significantly more than the $3,360 she was paid for designing the logo, Doulis inferred.
Hayhurst consistently denied using the Harvard School of Design logo on creating the design for Hayer and was "steadfast" that any similarity is coincidental, Doulis wrote.
Doulis went on to cast doubt about the extent of the reach of the trademark for the Harvard logo. It is not registered in Canada and no evidence was cited that the university had a "worldwide patent." Nor was evidence presented that either the university or the school specifically operated in Canada.
Whether the logos would cause anyone to be confused about who is who is not self-evident, Doulis wrote. "Hayer Construction is in the business of constructing homes and other edifices in northern British Columbia. Harvard University is providing an elite education program in architecture and design in Massachusetts."
"Kimberly Hayhurst argues there is 'little to zero risk of confusion or business impact from any inadvertent similarity between the Harvard and the Hayer logo,'" Doulis continued. "I agree that it is improbable that a consumer, upon seeing the isometric 'H' next to 'Hayer Construction' might believe the construction project was that of Harvard University’s School of Design."
Hayer had been seeking as much as $11,551.11 in damages.
