No Copyright Protection for Slogans
The United States Copyright office regulations do not allow for copyright registration of “short phrases” and “slogans.” This area of protection is left to the trademark laws.
Trademark Protection
The United States Patent and Trademark Office (USPTO) has strict regulations regarding whether a slogan can become a registered mark. It depends on whether or not the slogan is being used in the same manner as the mark to identify the source of the goods or services or if it is merely informational or generic and thus not capable of distinguishing the particular product or service from that of another. Additionally, unless the slogan is in itself inherently distinctive and qualifies as a mark in itself, the USPTO requires that the slogan be identified with the product or service so that the consuming public relates the slogan to the particular product or service. This requirement means that the slogan has developed what the law refers to as a “secondary meaning.”
Even if a slogan does not rise to the level of being protectable under federal registration guidelines, the law protects slogans in other ways. There are rights of trademark that are based on common law principles and unfair competition. Thus, even if the slogan is not the subject of a federal registration, it can be protectable upon a showing of such secondary meaning.
Secondary Meaning
A slogan which is descriptive of the goods or services with which it is used can be protected or registered only where secondary meaning is shown. A slogan acquires a secondary meaning when it has been used in such a way that its primary significance in the minds of the prospective purchasers is not the product/service itself but the identification of the product/service with a single source. In this regard slogans are treated the same as other word marks. Similarly, slogans which are arbitrary or only suggestive in nature are protectible without a showing of secondary meaning.
Distinctiveness Requirement
The requirement of distinctiveness occasionally disqualifies a slogan from legal protection or results in very narrow protection. One of the problems unique to slogans is that many were designed primarily to sell more products, and not to identify the advertiser or distinguish its goods from others.
Trademark or Service Mark Symbols
Slogans frequently accompany product and service advertising. While the product or service bears a superscripted “R” in a circle, the symbol for a registered trademark, the slogan bears a superscripted “TM” or “SM,” the symbols for claims to trademarks that are not registered. The use of the ™ symbol is merely an assertion by the advertiser that they are treating the line as a trademark. It does not assure any legal right. For legal protection, the line must be registered with the appropriate government trademark office, which then confers the right to use the registered symbol “(r)” and then they get the full protection of the law against poaching.
Well Known Slogans
A few well-known examples of slogans include:
- American Express: “Don’t leave home without it”
- Apple: “Think different”
- AT&T: “Reach out and touch someone”
- Avis: “We try harder”
- Budweiser: “The king of beers”
- Clairol: “Does she or doesn’t she?”
- Burger King: “Have it your way”
- Maxwell House: “Good to the last drop”
- Timex: “Takes a licking and keeps on ticking”
- Wendy’s: “Where’s the beef?”
- Wheaties: “The breakfast of champions”
Protecting Slogans
Protecting slogans is often a very difficult proposition. However, from the marketing as well as the legal standpoint, the more that slogans are used in close association with a product or service, the more weight such use may carry over time in terms of the trademark registration process. The user of the slogan should keep detailed records and notes as well as copies of all uses of the slogan in order to document claims of “secondary meaning,” both for purposes of federal registration as well as its claims under unfair competition and common law trademark laws.