Can we use an advertising phrase similar to one used by a competitor?

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Question:

A competitor claims that it has applied for and received a copyright on its entire Internet newsletter. The text includes the phrase "You Can Do It!" We previously planned to use those same words, for the same promotional reasons. How can we discover whether the competitor has properly obtained a copyright? Is that phrase subject to copyright protection?

Answer:

Copyright protects an author's expression; trademark protects names, phrases, and slogans used to promote and identify goods and services in the marketplace. Your competitor may have registered the newsletter with the U.S. Copyright Office, but the copyright alone is not likely to protect the phrase "You Can Do It." Copyright law does not protect short phrases.

The phrase may be protected as a trademark if it qualifies for protection. This includes registration with the U.S. Patent and Trademark Office (USPTO). Assuming neither of you have registered the trademark, any dispute over the trademark rights would likely be resolved in favor of whoever used it first in commerce.

One problem. Some common slogans are not immediately registerable and the USPTO may require that you demonstrate that you meet certain standards before registration. For example, you may have to demonstrate widespread use of the slogan as a trademark or that consumers associate you with the slogan. We suggest that you search for the exact phrase on the Internet, as well as at the USPTO website (www.uspto.gov).

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