India has always been upfront in the use of slogans, taglines, phrases to send our messages to the world. It is believed that slogans and taglines leave a grave imprint in the minds of people rather than long texts and paragraphs. Easy to remember and more impactful serves the purpose of branding and advertisement. SOME VERY FAMOUS AND IMPACTFUL SLOGANS WERE PART OF THE INDIAN INDEPENDENCE MOVEMENT- like Simon- GoBack, Tum Mujhe Khoon Do, main Tumhe Ajadi Doonga” (Give me blood and I will give you freedom).
When we hear this, we immediately recognize who said these slogans and in what context? That’s the purpose of slogans- creating impactful imprints in the mind of listeners that when they hear the same thing again they can associate it with that particular brand/company/person.
The immediate question that strikes you is when these slogans are so popular why didn’t they receive recognition under the Law? Well, the answer is simple back then; Intellectual Property Rights was just in Paper and a mere concept prevailing across the globe.
Things Improved, Law Evolved, Mindset Changed, and people were able to recognize the importance of branding for their business. A drastic change in the importance of IPR was witnessed and now the time has come when individuals, Companies, Corporate Bodies, Start-Up and even Governmental Organizations have been inclined towards protecting their brand and its attributes. Growing competition and consumer awareness, intention to claim monopoly rights over their brand and its marks have all added to making trademark an integral part of our business.
SLOGAN AS A TRADEMARK- IN A NUTSHELL
Section 2(m) of the Trademarks Act 1999, defines a trademark as a “mark” that includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colors or any combination thereof;
The law does not explicitly state that slogans are part of the trademark but the words like label, words, letters, any combinations, and packaging gave us an indication that yes, slogans can be a part of the trademark.
According to Merriam Webster dictionary- Slogans are “a brief attention-getting phrase used in advertising or promotion”. Slogans are an integral part of branding and advertisement. One of the major purposes of a trademark is to secure your brand in your name and restrict others from using it. The intent behind this is to make sure that no one associates your brand with theirs.
IMPORTANCE OF SLOGANS AND TAGLINES FOR BUSINESS
YOU MAY SAY IT'S PSYCHOLOGY, WE SAY IT BRANDING
when we hear the line – “utterly butterly delicious” or “taste the thunder”- we know what is it. That’s because such marks and slogans are registered in our minds owing to their usage over a period of time. Slogans make your logo, brand name easily recognizable and desirable in the market. It improves the visibility and viability of the business. It helps the customers know what the brand stands for.
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Brand Positioning and Recognition
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Building better Customer Relations:
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Having a distinctive ad slogan makes your brand different from others.
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The slogan is an effective way to make your product desirable in the market.
ONE OF THE MOST FAVORITE CHILDHOOD DRINKS IS FROOTI. WHEN YOU CAN’T HAVE MANGO ALL SEASON, YOU HAVE TO RESORT TO FROOTI – RIGHT?
Their tagline – “Fresh and Juicy” was so prominent that we could associate the tagline with the product and hence, they could get it registered as a
trademark. They are common words but have acquired distinguished characteristics by now.
HOW CAN WE NOT MENTION THE TEAM SLOGAN OF CHENNAI SUPER KINGS.
The team slogan is Yellove and Whistlepodu. Whistlepodu means cheering the team by blowing whistles in a classic way in Chennai style. It gained so much prominence in the game that the company got it registered as a trademark
DO YOU ALL KNOW PEPSI REFRAMED ITS SLOGAN AFTER TWO DECADES NOW?
“That’s What I Like.” (That’s their tagline). The company unveiled its new tagline last year and it has definitely boosted its branding across the globe.
That answers our question- Can slogans be trademarked?
Yes. The slogan of a brand too can be registered, and the procedure is the same as registering an ordinary trademark.
ENFORCEMENT OF SLOGANS MARKS IN INDIA:
Brands are now constantly resorting to innovative ideas and methods to be able to generate awareness about their brand and be at par with the growing competition in the market. To qualify as a protectable mark, slogans have to fulfill two criteria:
- It must be distinctive and unique.
- It should have developed a secondary meaning to itself owing to its long-term usage so as, such slogans immediately correlate with a product or service of a brand.
Yes, slogans are made up of common terms and are descriptive in nature, therefore they less likely to be accepted as trademarks. The pleadings taken by brand owners are - acquired distinctiveness, attainment of secondary meaning Prior Use and all this has to be proved beyond a reasonable doubt.
JUDICIAL LENSE:
Anchor marketed its product using the expression ‘Allround protection’ These words were held to be non-descriptive as they connoted the peculiar quality of the product. Such slogans or taglines in advertisements grab attention more than the products themselves. Hence P & G was refrained from using the brand “All-Around Protection”.
The Court held that the words Shauq and Swad are not similar and the two slogans are commonly used Hindi phrases and hence there is confusion with respect to those slogans. The court ordered that there was no irreparable damage to the goodwill of the plaintiff.
- Race for the Complete Man: Raymond Limited v. Radhika Export & Anr.
The Court held that it was a clear case of infringement and passing off as the Raymond Company had adopted the tagline, THE COMPLETE MAN, for more than 9 decades now. Court said Raymond has gained reputation and goodwill over the years. Thus, Radhika exports were restricted from using a similar marks.
The Court held that advertising slogans are prima facie not protectable under copyright law and may instead be protected under the law of passing-off.
The Court stated that “It has to be established by the person claiming the benefit of distinctive usage that over a period of time the slogan has developed a secondary meaning and a goodwill.” “I AM WHAT I AM” failed to prove acquired any distinctive character.
CONCLUSION:
Slogans are not yet entitled to be protected under the Copyright Act of 1957. But they can be protected under the Trademarks Act of 1999 as long as they pass the test of distinctiveness.
For more info contact us: unimarkslegal.com