Can We Use an Advertising Phrase Similar to One Used by a Competitor?

Question

A competitor fitness company claims that it has applied for and received a copyright on its entire monthly e-newsletter. The text includes the phrase "You Can Do It!" My company previously planned to use those same words, for the same promotional reasons (an annual membership drive).

How can we discover whether the competitor has properly obtained a copyright? Is that phrase subject to copyright protection? If so, are we prevented from using it?

Answer

Copyright protects an author's expression. Your competitor is correct that it has a copyright over the e-newsletter that it wrote. Indeed, even if it has not formally registered the copyright with the U.S. Copyright Office, the protection is actually automatic. However, the copyright protection is over the entire newsletter—not individual words or short phrases.

Copyright protection is not designed to protect these sorts of elements of a written communication. Rather, trademark law protects names, phrases, and slogans used to promote and identify goods and services in the marketplace. The phrase "You Can Do It!" may be protected as a trademark if it qualifies for protection. This includes registration with the U.S. Patent and Trademark Office (PTO).

Assuming neither of you has registered the trademark with the PTO, it seems unlikely that a competing fitness company could claim exclusive rights over such a relatively common phrase; one that countless businesses across the country likely use.

Indeed, your competitor would likely have a difficult time registering such a phrase. Some common slogans are not immediately registerable and the PTO may require that a company demonstrate that it meets certain standards before registration. For example, it may have to demonstrate widespread use of the slogan as a trademark or that consumers associate the business with the slogan.

Having said this, you may anger your competitor if you attempt to use the same slogan in your marketing shortly after it does. Moreover, you run the risk that your customers might be confused, and might not differentiate between your business and your competitor's.

For these reasons, it might be wise to avoid the phrase, or at least render it in a different manner (perhaps a different color, font, and/or placement) than your competitor used, so as to avoid any possibility of confusion.

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