Can I patent a slogan?

Can I Patent a Slogan?

Companies and individuals often develop memorable slogans as part of their marketing and branding strategy. When investing resources in creating distinctive slogans, the question naturally arises whether patent protection is available to prevent competitors from using similar phrases.

Understanding Patent Protection for Slogans

Basic Patent Requirements

For any innovation to qualify for patent protection, it must meet several fundamental requirements:

• Novelty - The invention must be new and not previously disclosed
• Non-obviousness - The invention must not be obvious to someone skilled in the relevant field
• Utility - The invention must serve a useful purpose
• Patent-eligible subject matter - The invention must fall within categories of innovations that patent law is designed to protect

The United States Patent and Trademark Office (USPTO) evaluates these criteria during the patent examination process.

Why Slogans Generally Don't Qualify for Patent Protection

Slogans typically face insurmountable challenges in meeting patent requirements:

• Slogans are expressions of language rather than technical innovations
• They generally don't solve technical problems or demonstrate utility in the patent sense
• Slogans fall into the category of abstract ideas, which are not patent-eligible subject matter
• They lack the technical character required for patent protection

According to the Manual of Patent Examining Procedure (MPEP), "abstract ideas" including literary expressions are specifically excluded from patent-eligible subject matter.

Appropriate Intellectual Property Protection for Slogans

Trademark Protection

While patents are not available for slogans, trademark law provides the appropriate protection:

• Trademarks protect words, phrases, symbols, or designs that identify and distinguish the source of goods or services
• Slogans that function as source identifiers can be registered as trademarks
• Trademark protection can last indefinitely as long as the mark remains in use and renewals are filed
• Trademark registration provides nationwide priority rights

Famous slogans protected as trademarks include Nike's "Just Do It," McDonald's "I'm Lovin' It," and Apple's "Think Different."

Requirements for Trademark Protection of Slogans

Not all slogans automatically qualify for trademark protection. To be eligible, a slogan must:

• Function as a source identifier, not merely as an advertising or informational phrase
• Be distinctive or have acquired secondary meaning connecting it to a specific brand
• Not be generic or merely descriptive without secondary meaning
• Not infringe on existing trademarks

Coca-Cola successfully registered "Open Happiness" as a trademark because consumers came to associate this distinctive phrase with their brand.

Copyright Considerations

Copyright protection may apply to slogans in limited circumstances:

• Very short phrases typically don't meet the originality threshold for copyright
• Longer, more creative slogans might qualify for minimal copyright protection
• Copyright protects against direct copying but not independent creation
• Copyright term is much longer than typical commercial use of slogans

The U.S. Copyright Office has stated that "words and short phrases such as names, titles, and slogans" are generally not copyrightable.

Strategic Approaches to Slogan Protection

Developing Protectable Slogans

To maximize intellectual property protection for slogans:

• Create distinctive, non-descriptive phrases
• Use the slogan consistently in marketing and packaging
• Include the TM symbol (™) when using an unregistered slogan in commerce
• Use the registered trademark symbol (®) only after federal registration
• Maintain records documenting when and how the slogan was first used

Procter & Gamble developed and protected distinctive slogans like "Tide Knows Fabric Best" through consistent usage and registration.

Registration Process

To secure trademark protection for a slogan:

1. Conduct a comprehensive trademark search 2. Determine proper filing basis (use in commerce or intent to use) 3. Identify appropriate goods/services categories 4. File an application with the USPTO 5. Respond to any office actions or oppositions 6. Maintain the registration through continued use and renewal filings

The International Trademark Association provides resources for navigating the registration process across different jurisdictions.

International Considerations

For global brand protection:

• Trademark rights are territorial, requiring separate registrations in each country
• The Madrid Protocol allows international filing through a single application
• First-to-file vs. first-to-use systems vary by country
• Translation and cultural adaptation may affect protection strategy

Companies like Starbucks register their slogans in multiple jurisdictions to secure global protection.

Questions about Slogan Protection

What's the Difference Between Using ™ and ® Symbols with My Slogan?

The ™ and ® symbols serve different legal purposes when used with slogans. The ™ symbol indicates you're claiming trademark rights in the slogan, even without registration. You can use it immediately upon using your slogan in commerce to put others on notice of your claim. The ® symbol, however, may only be used after receiving federal registration from the USPTO. Using the ® symbol without registration can result in penalties, including being barred from registering the mark and potentially facing fraud claims. The practical difference is that ™ represents common law rights in the geographic areas where you're using the slogan, while ® indicates nationwide protection with legal presumptions of ownership and validity. Many businesses use ™ while their trademark application is pending, then switch to ® once registration is complete. Always use the appropriate symbol consistently in marketing materials, packaging, and advertising to maintain the strongest legal position.

How Distinctive Does My Slogan Need to Be for Trademark Protection?

Distinctiveness exists on a spectrum that directly impacts trademark protection strength. Highly distinctive slogans like Apple's "Think Different" receive strong protection because they don't directly describe the products. Suggestive slogans that hint at product qualities (like "Airbus: Setting the Standards") can also receive good protection. However, merely descriptive slogans that simply state what the product does face significant hurdles—they require proof of "secondary meaning," demonstrating that consumers specifically associate the phrase with your brand through substantial evidence of advertising, sales, and consumer recognition. Generic slogans that simply name the product category (like "We Sell Books") cannot be protected regardless of use. For maximum protection, avoid slogans that directly describe your products or services; instead, create phrases with unexpected wording, creative language, or metaphorical meanings. During trademark examination, the USPTO will evaluate distinctiveness based on the relationship between your slogan and your specific goods or services, not just the words themselves.

Can I Protect a Slogan I Haven't Used Yet?

Yes, you can protect a slogan before using it commercially through an "intent-to-use" (ITU) trademark application with the USPTO. This filing establishes your priority date against later users, essentially reserving the slogan while you prepare for market launch. However, you must genuinely intend to use the slogan commercially—filing without true intent constitutes fraud on the USPTO. The application process initially proceeds like a regular trademark filing, but instead of receiving registration immediately after approval, you'll receive a "Notice of Allowance." You then have six months to either use the slogan commercially and file a Statement of Use, or request a six-month extension (up to five extensions are possible, providing a maximum of three years to begin use). This approach is particularly valuable for protecting slogans during product development, rebranding initiatives, or expansion planning. Remember that actual protection only begins once you start using the slogan and complete the registration process, though your priority date remains your initial filing date.

How Do I Enforce My Rights in a Protected Slogan?

Enforcing your rights in a protected slogan requires vigilance and strategic action. Implement a monitoring program to detect potential infringements, using trademark watch services, internet alerts, industry publications, and social media monitoring. When you identify potential infringement, assess the similarity of the competing slogan, the relatedness of goods/services, and potential consumer confusion before acting. For minor infringements, a cease-and-desist letter from your attorney often resolves issues without litigation. For ongoing or serious violations, you might need to file a trademark infringement lawsuit seeking injunctive relief and possibly damages. Alternative dispute resolution like the Uniform Domain Name Dispute Resolution Policy (UDRP) can address slogan use in domain names. Remember that enforcement should be consistent—selectively enforcing your rights can weaken your trademark through the legal concept of acquiescence. Document all enforcement efforts, as this history strengthens future cases by demonstrating your commitment to protecting your slogan. The strongest enforcement position comes from federal registration, though common law rights can also be enforced if you can prove consumer association with your brand.

What Other Forms of Intellectual Property Might Protect My Slogan?

While trademarks are the primary protection for slogans, a comprehensive intellectual property strategy might incorporate multiple protection avenues. Although standalone slogans rarely qualify for copyright protection due to their brevity, a slogan incorporated into a larger creative work (like an advertisement or jingle) may receive copyright protection as part of that work. Some companies protect the distinctive visual presentation of their slogan through trade dress protection, covering the unique colors, fonts, and styling. In unusual cases where a slogan represents a distinctive selling technique or promotional method, aspects of the overall marketing approach might qualify for business method patents, though the slogan itself would not be patentable. For slogans with significant commercial value, contractual protections like confidentiality agreements can prevent premature disclosure during development. Companies often register domain names containing their slogans to prevent cybersquatting. The most effective approach typically combines trademark registration with consistent branding, strategic marketing, and building consumer recognition that associates the slogan exclusively with your products or services.