In our previous article, we brought to light Kanye West’s decision to trademark the phrase ‘God Save America’ (link). Today we discuss if trademarking a slogan is even possible.
Gaining trademark protection for slogans can prove to be challenging despite the plethora of success stories. Do some slogans meet the requirements to be protected, while others do not? In this article, we investigate what separates the wheat from the chaff.
What are slogans?
Slogans are taglines or phrases used in advertising or sales campaigns of a good or service to garner necessary attention from the public in order to drive sales to the good or service in question. Over time, slogans also serve as an identifier for the brand, working two-fold to build brand recognition.
Poignant examples such as Nike (‘Just Do It’) and Maybelline (‘Maybe She’s Born With It’) tells us that a slogan can be inherent in the identity of the brand and for that reason, becomes a powerful marketing tool. Therefore to obtain trademark protection over a slogan can be a good business decision – but can any and all slogans be protected?
Yes – but there are requirements to be met.
Distinctive Slogan
To obtain protection for a slogan, the slogan must first and foremost be distinctive. In other words, the slogan stands a better chance of gaining protection if it is creative and inventive. Distinctive or creative slogans can consist of made-up words or a combination of words that describe the good or service in an original manner.
Slogans that are merely descriptive are at risk of being less protectable if the slogan is too descriptive of the qualities of the good or service. It will be a challenge to register common, unimaginative slogans, unless under the circumstances whereby the descriptive slogan develops a secondary meaning over time that associates the slogan with the good or service sold.
Slogans with Secondary Meaning
What is secondary meaning? Secondary meaning refer to when a slogan or mark has achieved significant distinction in the public sphere to the point where consumers are able to associate the slogan or mark to a source. This can be the good or service sold, or a company or brand.
It can be years and years before secondary meaning is developed for a slogan or mark. Applicants must show continuous use of the slogan in marketing and sales over the years in order to prove that the slogan has achieved secondary meaning. If the slogan is greater in descriptiveness, the more the applicant will have to demonstrate strong secondary meaning in association with the slogan.
Not Every Slogan Is Protectable
Applicants must keep in mind that at the end of the day, not all slogans are protectable. Phrases that fail to develop secondary meaning, everyday phrases or common quotes do not qualify to be registered as a trademark. The importance lies in devising a slogan that not only reflects sharply the image and ethos of your brand but also acquires the attention and loyalty of consumers.
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