Company Slogans: How much of it is Intellectual Property?

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Slogans are key elements in advertising campaigns as brand owners hope that the public will associate the slogan with their products or services and, therefore, to their brand. For this reason, the question of protection is of high importance.

What is a trade mark?

A slogan is a short phrase or a sentence that a company uses to identify itself or its products. It identifies the services or goods of one person and distinguishes it from the goods and services of another. An example would be Nike’s slogan, “Just Do It”.

  • Once a slogan has been registered as a trade mark, nobody else can use it, or one that is confusingly similar. If this happens, legal action may result.
  • A trade mark can only be protected as such and defended under the Trade Marks Act, 1993 (Act 194 of 1993) if it is registered. Unregistered trade marks may be defended in terms of common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trade mark the exclusive right to use that mark.

CIPC administers the Register of Trade Marks which is the record of all the trade marks that have been formally applied for and registered in the Republic of South Africa.

What can be registered as a trade mark?

If you want to register a slogan, you must first consider of the slogan in question serves the purpose of distinguishing the goods/services of one trader from those of another trader.

  • It must not be a customary, everyday phrase that is common for people to use in your field of trade.
  • It can’t be representations of protected national emblems, such as the national flag or a depiction of a national monument, such as Table Mountain.
  • It must not be offensive or contrary to the law or good morals or deceptive by nature or way of use.
  • There are no earlier conflicting rights.

An example of a slogan or phrase that can’t be registered as a trade mark is “24 Hours”, since the expression is reasonably required for use by other traders.  If a phrase like this was trade marked, the owner of the registration would acquire the exclusive right to use this phrase and thereby prevent all other traders from using it, which is unreasonable and therefore cannot be allowed.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)

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