Is A Slogan Copyright Or A Trade Mark?
Copyright and a trade mark are different types of intellectual property although at times there are some areas of overlap.
To answer the question of whether a slogan is a trade mark or copyright, let’s first look at some of their differences and similarities.
Copyright is protection afforded to original ‘works’.
As soon as there is material embodiment of an original ‘work’, either tangibly or electronically, that piece of work is immediately and automatically protected by copyright. Examples of works in which copyright subsists are – literary works, musical works, architectural works, artistic works, software, among others. Copyright protects the creator against others reproducing, adapting or distributing their original work without permission.
In simple terms, copyright is the protection afforded to sufficiently creative work.
A trade mark is a ‘sign’ that is used (or intended to be used) to distinguish one entity’s goods and/or services from the similar goods or services of other traders.
Examples of signs that are considered trade marks include a name, words, logos, images shape, item of packaging, a sound and a scent – or a combination of these. As such a slogan is considered a trade mark, and is unlikely to attract automatic copyright protection. Unlikely copyright material, a trade mark should be registered with the relevant authorities in the country/countries where protection is sought to claim ownership and protection.
Unlike copyright, trade marks are used in the course of trade as a badge of origin to distinguish the specified goods/services from those offered by other traders operating in the same industry.
Now let’s take a look at the definition of a slogan and then we’ll discuss whether it is a trade mark or copyright.
What Is a Slogan?
A slogan is a short, catchy, punchy and memorable standalone phrase which is used to represent and promote a brand. Some famous examples are:
- Just Do It (Nike)
- Finger Lickin’ Good (Kentucky Fried Chicken)
- The Fresh Food People (Woolworths)
Slogan are unlikely to be considered copyright ‘works’ but unfortunately not all slogans are registrable as trade marks either. Some slogans are simply too unoriginal or descriptive for one trader to claim an exclusive right to use and own.
When Can a Slogan Be Registered as a Trade Mark?
For a slogan to be registered as a trade mark, it needs to fulfil the same criteria as a more ‘standard’ trade mark (such as a brand name or logo). It would need to be:
- Original
- Distinctive
- Non-descriptive (eg ‘the fastest courier in Australia’ or ‘the tastiest burgers in town’ for be considered descriptive)
We suggest a strong slogan trade mark may be one that encapsulates your brand personality in a creative, fresh and memorable way. The aim is for the slogan to be repeatedly used in your marketing and advertising communications so that the public automatically makes the connection between the phrase and your brand. In other words, your slogan has to set your particular product or service apart from the competition.
Should the slogan itself not be registrable, it may be possible to file an application to register it in combination with your business or brand name and logo. However, note this would not provide separate exclusivity to the slogan as a standalone element.
Note that the rights to a trade mark is in relation to specified goods or services, so if your application to register a slogan as a trade mark was successful, there’s nothing to prevent another business using that same slogan for non-competing goods in a different market sector.
For more on slogans and trade marks, visit the IP Australia website.
When Can’t a Slogan Be Registered as a Trade Mark
Although there is a clear difference between copyright and trade marks, the terms are often used interchangeably. Both are forms of intellectual property and if you are a business owner or an artist wanting clarification on how best to protect your IP, you should seek expert advice.
A slogan likely can’t be registered as a trade mark if it is merely descriptive or describes characteristics of your business in a generic way. For example, slogans like ‘THE BEST PIZZA SOUTH OF THE RIVER’ or ‘FAST, FRIENDLY, EFFICIENT SERVICE’ would be unsuitable for trade mark registration.
So, Is a Slogan Copyright or a Trade Mark?
More often than not it will be considered a trade mark. Your slogan would need to be a lengthier phrase of sufficient originality to consider copyright coverage, which of course, is not usually how a slogan is used or created. Further, note that copyright is not infringed by coincidental use of something similar by a competitor whereas trade mark registration provides the right to prevent others using deceptively similar signs for competing goods or services, whether coincidental or not.
The key takeaway is that registering a trade mark is usually the best way of comprehensively protecting your slogans. If you have developed a unique slogan to distinguish your brand or service from your competitors, it’s worthwhile exploring the possibility of securing its protection through trade mark registration.
That said, the world of trade marks is complex and dynamic and there are many nuances which only an experienced professional will know about. If you are considering registering a slogan or any other sign as a trade mark, it is always highly recommended that you seek specialised support.
Should you have any questions or need assistance registering your campaign slogan as a trade mark, we welcome you to get in touch with an affordable trade marks attorney at Mark My Words TradeMark Services.
