On Dutch Cowboys there are quite a few visitors from the (online) marketing world, for whom this question sometimes plays a role. Not that you are all aware of slogans on a massive scale, but that you sometimes think “hmmm, what I just invented do not know anything about?”. Or that you have come up with something and someone else jumps on your neck, while you did not have that other person in mind when brainstorming about a slogan. And sometimes you just want a parody purposefully.
Copyright on slogans
You probably know that a slogan can be copyrighted. There is sometimes hard to fight about, for example in the case you are familiar with the slogan “So now a Bavaria first”. After the verdict of the court (“yes, copyright”), all lawyers (from lawyers to professors) swooped over each other: one person did not find copyright, the other did. I was in the ” yes-copyright camp “, but the court finally decided on appeal that all “yes-tellers” were wrong. As far as I know there is no newer decision by a higher court about copyright on slogans, so here we have to “do it” for the time being. Well, you do not know anything yet, except that I am sometimes wrong and apparently it can also be difficult to claim copyright for a famous award-winning slogan.
Trademark law on slogans
Are there any other ways than copyright to protect a slogan, such as trademark law? After all, sometimes you think with your slogan: “copyright mwah, I was not that creative anymore”, or do you just want something registered and therefore tastebarers to swing to hijackers. Such a case last year. IT company Conclusion had as business stamp ” Business done differently ” and did not find it funny that PriceWaterhouseCoopers used “digital done differently”. However, at the start of the procedure, Conclusion already noticed that trademark law “would not be him”: if it had not tried to register the slogan as a figurative mark, but as a word mark, that would have been refused. The reason would have been that slogans are not supposed to serve as a brand (distinguishing sign for a product or service) unless everyone (in the whole Benelux!) Knows the slogan and immediately thinks of a certain company. Such a registration as a word mark was, for example, successful for “Merci, that you are there” (and “Leonidas, because it is you” was not allowed anymore). You can not appeal to the words in the logo if it is refused as a word mark.
Unlawful acting (last lifebuoy)
Anyway, Conclusion decided to ask for a ban because it was “unlawful” and not because of its trademark. That last lifebuoy is only there if something like a word mark would be refused and that was exactly the case here. In principle, you can borrow a loan from your competitor, even if it causes damage or confusion. Only when there are “additional circumstances”, for example the deliberate creation of unnecessary confusion in order to lure away sneaky customers away from the competitor can this be different. There was no question here.
Morality of this story
What do we learn from this? The conservatives among you could hold on to the rule “if I think it is good enough to borrow, it is probably creative enough for copyright” (in the lower courts, copyright is quickly seen in a slogan, though the question is whether that remains so after “Bavaria”). If your client has deep pockets, it may be worthwhile to deviate from that rule and go on to appeal, as Yourhosting did in the Bavaria issue. Check also whether the slogan is not registered as a trademark, only as a logo or as a word mark (or as a word mark refused). That can be a clue.