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Protecting your brand identity: slogans, phrases and other taglines

Properly marketed and employed, slogans, product phrases and other types of taglines can help companies to build an instantly recognisable brand identity in the minds of consumers. Nike’s ‘Just Do It’ and McDonalds’ ‘I’m lovin’ it’ are just two examples that spring instantly to mind.

As these companies show, the best slogans become synonymous with the brand as a whole, reflecting the company’s products and values in one short or simple statement. Effective taglines such as these are not easy to create, so when you do it’s important to protect them and enforce them against would-be copiers. The question is how.

Slogans: what can you protect?

As important as marketing phrases can be to your brand identity and brand success, there is no separate IP system to register ownership of that creativity; instead, brand owners should seek to protect and enforce their rights using trademark and/or copyright law.

In order to be registered as a trademark, the phrase or slogan will have to fulfil the usual criteria for trademark registration, in that it must:

  1. Be available for registration in your chosen class, i.e. the same or a similar slogan must not have been already registered in your class or jurisdiction for the same or similar group of services;
  2. Not be too 'descriptive': if the trademark is too descriptive of the goods or services or any characteristics of them, then the trademark office will likely object to your mark.
  3. Be 'distinctive': the more distinctive the wording you use, the more likely it will be that your trademark will be awarded protection by the relevant register.

It is this final requirement that can often pose the greatest hurdle for brand owners seeking to register their slogans as trademarks. Nonetheless, as Nike, McDonalds and L’Oréal, among others, have shown, a phrase that is not initially considered to be a distinguishing mark on its first use may start to possess sufficient distinctiveness over the course of time, enabling its registration.

Copyright protection

Certain phrases and taglines will qualify for copyright protection if they are deemed to be ‘sufficiently original’ with their 'own character'. In practice, however, these criteria are not always easy to prove, and it will be for the courts to examine in each case whether or not copyright subsists in the slogan.