Businesses use slogans or catchphrases that customers can resonate with.
They give businesses an identity and enhance its success.
For example, once you hear the phrase ‘Just do it,’ you remember NIKE because it owns this powerful phrase.
It is this effect that causes companies to find ways to own and protect these phrases.
Since slogans are a form of intellectual property, it’s natural to wonder if they can be patented.
It couldn’t be further from the truth.
The only way of protecting a slogan is to register it as a trademark.
Here’s more about the subject.
What is a Slogan?
A slogan is a brief and memorable catchphrase that creates an appeal and captures people’s attention.
It’s short and concise to grab the attention of your audience and make an impression within 7 seconds.
This is because humans have an incredibly short memory that lasts 7 seconds.
Having said that, it’s important to understand how slogans qualify as intellectual property but can’t be patented.
The premise of having a slogan is to relate with a target audience and make it stand out.
As such, a business has exclusive rights to using it and must protect it.
However, it doesn’t mean slogans can be protected as other inventions.
Can You Patent a Slogan?
No, you can’t patent a slogan.
To understand why a slogan can’t be patented, we need to describe the meaning of a patent and find out what can be patented.
A patent gives an inventor exclusive rights to their work to prevent others from making, using or selling the invention for a stipulated period.
These rights encourage developers to make unique inventions useful to society.
An invention qualifies for a patent if it’s non-obvious and novel.
This means it’s different from similar inventions and must not have been sold, used, or patented by another inventor within a year.
Also, the invention must be surprising or unexpected and the inventor must prove it’s useful.
Under patent law, an invention is regarded useful if it falls within one of the following five categories:
- A process (new way of doing something)
- A machine (a device that gets work done using energy)
- A manufactured article or (an object used to accomplish a result with few or no moving parts)
- A new plant variety
- A new composition, e.g. of a drug
While slogans are useful, they don’t fall in either of these categories.
Therefore, they can’t be patented. So how do you protect your slogan?
How to Protect a Slogan
The best way to protect a slogan is to register a trademark.
A trademark is a phrase, word, design, symbol, or a combination of these features used to identify goods or services.
It has the following benefits:
- Protects your brand: A trademark keeps your competitors from using your distinct slogan
- Prevents counterfeiting and fraud: A trademark gives your products exclusive rights to them
- Identifies the source of the goods or services
Once you start using the slogan along with your goods or services, you become a trademark owner.
This means you establish rights to use it within your geographical area.
Since businesses are not limited to specific locations, it’s important to register the trademark.
Registering a trademark gives your business broader rights and protections than an unregistered one.
A registered trademark also protects your slogan from infringement.
Requirements for Trademarking a Slogan
When trademarking a slogan, ensure it meets one of these definitions:
- It has a secondary meaning beyond the literal one. This type of slogan is used in advertising or commerce for at least five years
- It’s distinct and creative
Note that not all slogans can be trademarked.
Applications for slogans with entertaining phrases which are not profit-oriented, for example, won’t be approved.
Also, common phrases like ‘Why Pay More?’ won’t be approved because they don’t have another meaning.
How to Trademark a Slogan
Registering a slogan as a trademark can be complicated.
You want to enlist the help of an attorney to get the process right from the onset.
Here’s a step by step guide to help you:
1. Choose a Distinct Phrase
The trademark should be different from the products listed in the application.
For example, if registering a trademark for the phrase, ‘Buy Affordable Shoes Here’ and your prospective product listed in the trademark application is shoes, the USPTO (United States Patent and Trademark Office) won’t accept it.
This is because trademarks shouldn’t be generic descriptions of the products listed on the application for registration.
Instead, look for a phrase that isn’t related to the products.
2. Search the Phrase on USPTO Database
The next step is to ensure that no other businesses have registered the phrase with the agency.
Be sure to consider the phrase and similarity between your products and the competing phrase’s goods and services.
For example, if you’re registering a slogan for a sneaker company, avoid using phrases like ‘Just Do it Now.’
The trademark is not only similar to Nike’s but the products are identical.
3. Choose a Suitable Filing-Basis for the Trademark Application
A filing basis explains the grounds for applying for protection for the slogan.
Trademarks are classified into four and each has special considerations:
- Intent-to-use basis: Trademark Act Section 1 (b) allows businesses to register slogans they intend to use within six months. If the period lapses before using the registered trademark USPTO requires the business owner to provide a Statement of use along with evidence to prove the mark is in use. If it’s not possible, ask for an extension
- Use on Commerce basis: If the business owner is already using the phrase, they can make a trademark application under Trademark Act Section 1 (a)
- Foreign registration basis: In case the business has registered the trademark in a foreign country, Trademark Act Section 44 (e) allows the business to apply for a US trademark if it’s using the same mark and the products are similar to those on the foreign application
- Foreign application basis: If the business owner applies for the trademark in another country the Trademark Act Section 44 (d) allows them to make a trademark application in the US. In this case, the business owner applies a Priority filing date based on the foreign application; not the date of making the U.S. application
4. Choose a Suitable Class of Goods
The USPTO classifies products using a numbering system.
Be sure to use the correct number for the type of goods or services you deal in.
5. Pay the Corresponding Fee
The cost of registering a trademark varies based on the class of goods and if an attorney is helping you.
If you’re preparing the application alone, the cost is $275 per trademark registration class.
However, if enlisting the help of an attorney throughout the application process expect to pay $1,000-$2,000.
Typically, the cost entails:
- Filing fees for the trademark application
- Maintenance fee
- Trademark attorney fees
6. Submit the Trademark Application
After providing the necessary information, submit the application.
Check if you’ve provided all the details; even the slightest mistake may cause USPTO to decline the application or take other drastic steps.
Can You Protect a Slogan with a Copyright?
Copyright law doesn’t protect slogans, titles, phrases, or names; rather it protects the original work of authorship including musical, literary, and artistic work like novels and movies.
The best way to protect a slogan is to register it as a trademark.