The fact that advertising one-liners, slogans, headlines etc. cannot be copyrighted seems to be established law. There is a library’s worth of articles and studies all over the web that have systematically explained and analysed why this is so. It seems to be settled law that Advertisements are per se Copyrightable. Copyright protection subsists in the original and creative expression in an advertisement, it may be classified under copyright law as a literary work (e.g., written text), musical work or sound recording (e.g., jingles), pictorial, graphic, or sculptural work (e.g., illustrations, photographs, or three dimensional advertising displays), or audiovisual work (e.g., commercials). However, advertising slogans are a different ball game. Slogans, Headlines, Taglines etc. are protected by Trademark and not Copyright.
In ‘Intellectual Property Rights in Advertising’ by Lisa P. Ramsey, she writes;
“Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans.”
The Courts have held slogans to be combinations of words or short, catchy phrases whose purpose is to distinguish the products of one producer from another, create a unique identity for the product they advertise and embed the product in the minds of the customers. By virtue of this, many slogans meet the general criteria for trademark protection. The U.S. Patent and Trademark Office (“PTO”) registers, and courts protect trademark rights in slogans if they are distinctive—if they identify and distinguish a product source. Some slogans are deemed inherently distinctive, like Nike’s ‘Just Do it’, Apple’s ‘Think Different’, ‘KFC’s ‘it’s finger lickin’ good’ etc.
In a nutshell, a slogan’s virtue of distinguishing a product from another one is recognized over the creative property subsisting in it.
To cite Melville Nimmer on Copyrights;
“words and short phrases such as names, titles and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents are not subject to copyright”.
The Delhi High Court’s recent finding in Godfrey Phillips India Ltd V/s Dharampal Satyapal Ltd & Anr., echoes the great American jurist’s opinion. The Court held that, the line, ‘Swad Badi Cheez Hai’ of Tulsi Saada Pan Masala was not an imitation of ‘Shauq Badi Cheez Hai’ of Pan Vilas Pan Masala. The two Pan Masala manufacturers locked horns when the Plaintiff, makers of Pan Vilas Pan Masala, filed a suit against the Defendant, the manufacturers of Tulsi Saada Pan Masala for infringement of copyright, passing off, unfair competition and dilution, alleging that the Defendant’s slogan, ‘Swad Badi Cheez Hai’ was a slavish copy of their slogan, ‘Shauq Badi Cheez Hai’.
The Hon’ble Court opined that the said slogan of the Plaintiff wasn’t an outcome of great skill and was only a combination of words commonly used every day, in fact both the slogans, ‘Swad Badi Cheez Hai’ and ‘Shauq Badi Cheez Hai’ were commonly spoken in Hindi language in day to day life.
The Court thus refused to give an order of injunction against the Defendant.
Makes us wonder what the copywriters at the Plaintiff’s agency, M/s Meridian Communication Pvt. Ltd., have to say about this.