Brands are constantly innovating to find new and unique methods to associate themselves with their goods to leave a lasting impact on customers. This may involve logos, product names, forms, colors, taglines & slogans. Brand taglines play a good role in impacting the customer’s mind because it is catchy and have words that help customers connect with a business's goods and services and the brand in general. A specific sequence of words repeatedly used to promote a brand or company in connection to its goods and services often establishes a position in the public's memory. Taglines are generally utilized in advertising because they are memorable thereby distinguishing the brand, and elicit particular emotions in the consumer. Slogans bear the brand's philosophical load, express the business's message alongside the brand, and at times are more essential than the brand.
Some of the Taglines that have got protection in India:
- Nike – “Just Do it”
- Apple – “Think Different”
- L’Oreal – “Because you’re worth it”
- KFC – “It’s finger lickin’ good”
- Coca-Cola – “Open Happiness”
- McDonald’s – “I’m lovin’ it”
- Raymond – “The complete Man” -
Protection of Tagline under Trademark Law
The Trademarks Act, 1999, Section 2(m), defines "mark" as a device, brand, heading, label, ticket, name, signature, word, letter, number, a form of products, packaging, or combination of colors or any combination thereof. As can be seen, the regulation includes a tagline or combination of words under mark definition. The Trademark Act, 1999 defines a trademark as "a mark capable of being graphically depicted and capable of distinguishing the products or services of one person from those of others in the course of commerce."
A brand slogan may be reduced to a two-dimensional depiction on paper. The unique requirement is linked to Section 9(1) of the Trademarks Act, which deals with fundamental reasons for the rejection of registration. In order to qualify as a trademark, a brand tagline must be unique, having a secondary meaning and goodwill, and not be descriptive of the items or services for which it is used.
Protection of Tagline under Copyright Law
Original literary, dramatic, musical, and creative works and cinematographic films and sound recordings are protected by copyright, In Pepsi Co. Inc. and Anr v. Hindustan Coca Cola and Ors. , the Delhi High Court found that advertising slogans were not protected under the Copyright Act but could be protected under the law of passing off. Additionally, the Court said that although developing advertising slogans often involves a high degree of ability and judgment, they typically do not qualify as creative literary works. The law of passing off is not restricted to names but includes other descriptive items, such as slogans, as part of the goodwill created via extensive advertising.
Thereafter, in Godfrey Phillips India Ltd. v. Dharampal Satyapal Ltd. & Another , the Delhi High Court followed the Pepsi Co. decision and held that the advertising slogan "Shauq Badi Cheez Hain" is a simple combination of common words and thus cannot be protected as a literary or artistic work under the Copyright Act because it is not the result of great skill, but could be protected under the law of passing off if a requisite case is made out of it.
From above judgments advertising slogans and brand taglines have been denied copyright protection due to the general nature of the phrases used in such taglines. Brand taglines are often the result of much consideration and intellectual endeavor and may be considered within the purview of originality and creativity to qualify as literary or creative works.
Case Laws pertaining protection of Taglines
The Karnataka High Court assessed whether the phrase "I Am What I Am" developed unique character as a result of Gomzi Active's usage in the matter of Reebok India Company v Gomzi Active . The Court stated that "the person claiming the benefit of distinctive usage must establish that the slogan has developed a goodwill over time." and concluded that "the trade slogan "I AM WHAT I AM," which is more generic in nature, has not been shown to have acquired any distinctive character in relation to the plaintiff's goods."
In Stokely Van Camp Inc. v Heinz India Private Limited , the Division Bench of the Delhi High Court considered whether the use of the slogan 'Rehydrates fluids; replenishes vital salts; recharges glucose' constituted infringement of the registered mark 'Rehydrate Replenish Refuel' in relation to energy drinks.. The defendant's use of the language did not seem to be dishonest at the first glance, since they were typical terms or idioms used to describe what appears to be an isotonic drink's functional value." and held that "regardless of the existence of a registration in favour of the plaintiffs, if the registered expression or an expression similar to the registered expression is used to describe the character of the product, the user will not be guilty of infringement within the meaning of Section 30(2)(a) of the T.M. Act, 1999."
In Raymond Limited v. Radhika Export & Anr, the Court decided that there was a precise instance of trademark infringement and passing off since the Raymond Company had used the slogan, THE COMPLETE MAN, for over nine decades. Raymond, the Court said, had developed a name and goodwill over the years. As a result, Radhika exporters were prohibited from using comparable marks.
How to pick right tagline/slogan for brands
Few things that one should consider for while choosing a tagline:
- Whether the slogan satisfies the distinctiveness and non-descriptiveness criteria or not.
- The composition of words that have come together to form a slogan/tagline does not comprises entirely of common words which are incable of being protected as a trademark.
- Prior to the launch of a slogan, the brand should be prepared with an impeccable marketing strategy to create goodwill among the customers or consumers because the customers must associate the tagline with the brand, for instance, in Raymond Ltd. vs. Radhika Export.
- Proper documentation and comprehensive data about the usage and advertising of brand taglines are critical for avoiding dilution of public goodwill.
- Taglines are typically not accorded copyright protection due to generic common-place terms, and the Courts are reticent in recognizing them as unique literary or creative works. Hence, one should opt for Trademark protection. Taglines/slogans are protected and subject to redress (for infringement) under both statute and common law, namely via infringement and passing off proceedings. To get such protection for slogan/tagline rights (and enforcement thereof), the tagline/slogan must, however, meet specific requirements established by the Courts.
