Can a Slogan Be a Trademark?

Protectible slogans are usually tied to an advertising campaign.

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There are two types of slogans for which applicants commonly seek federal trademark registration:

  • Slogans that are protectable as trademarks such as “Where’s the Beef” or “Don’t Leave Home Without It,” that are tied to an advertising campaign or used to sell a product or service, and
  • Slogans or short phrases that placed on merchandise such as bumper stickers that are intended to amuse or provoke people such as “I’m with Stupid” or “My Other Car is an Accordion.” These are usually not protectable under trademark law because they are considered ornamental or informational – that is, there sole purpose is to amuse, entertain, provoke or inform—not to sell a product. To acquire federal registration the trademark applicant must create a consumer association with a product or service (for example, Honk if You Sell Car Horns for an applicant that sells car horns). 

To qualify as protectible marks, slogans must be either:

  • inherently distinctive and creative, or
  • have developed enough secondary meaning to immediately call a product or service to mind.

What is secondary meaning?

A slogan that is not inherently distinctive will only be protected under trademark law if it achieves secondary meaning. Secondary meaning refers to whether the mark has acquired some distinction among consumers – that is the mark transcends the literal meaning of its words and is associated with a source. Usually it is demonstrated by showing either five years of continuous use in commerce or by substantial sales and advertising.

The more mundane a slogan is, the more secondary meaning the owner will need to show to obtain protection from imitators. For example, the owners of Excedrin had to prove that “Extra Strength Pain Reliever” had developed a strong secondary meaning.

If You Receive an Objection from A Trademark Examiner. 

Upon receiving an application for  a slogan, the trademark examiner will probably object on the basis of § 1202.03 or § 1202.04 of Trademark Manual of Examining Procedure or TMEP (excerpted below).

§1202.03 Refusal on Basis of Ornamentation Subject matter that is merely a decorative feature does not identify and distinguish the applicant’s goods and, thus, does not function as a trademark. A decorative feature may include words, designs, slogans, or trade dress. This matter should be refused registration because it is merely ornamentation and, therefore, does not function as a trademark.

§1202.04 Informational Matter Slogans and other terms that are considered to be merely informational in nature, or to be common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry, are not registrable ... 

It's on these basis, for example, that the slogan THINK GREEN was rejected as a trademark because it was merely a statement of environmental awareness. The slogan, HAIR COLOR SO NATURAL ONLY HER HAIRDRESSER KNOWS FOR SURE was registered because consumers associated the slogan with a particular product. The only way to overcome this objection is to show that consumers associate the slogan with your products or services.

Copyright Protection. Typically, a slogan cannot be protected under copyright law as copyright does not protect short phrases. A short phrase can be protected in conjunction with an illustration or it may be protected in some cases, if it is taken from a larger well-known work, such as taking a line from a movie.

Learn more about Trademark Law.

by: , Attorney

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