Is there copyright in a slogan?

By March 9, 2017Uncategorized

A common misconception is that copyright cannot be relied on to protect short slogans of the type used in advertising. This is because such slogans are seen by some as just a brief run of words without much in the way of literary genius. Copyright law on the other hand is about protecting things that involve a reasonable amount of skill, labour and judgment.

In the recent case Sunlec v Electopar the High Court had to decide whether there was copyright in “Field Friendly – The best choice for fieldwork”. The slogan had been created by the company Sunlec to promote wire marking products and there was argument on whether it is capable of copyright protection.

The Court held that it is wrong to assume that slogans are incapable of holding copyright. It was said that if independent skill, labour and judgment had gone into creating a slogan then it might well be capable of protection. The Court went on to hold that in this case there is enough in the slogan to warrant copyright because the phrase involves a rather succinct and memorable use of the English language.

The interesting thing about the case is that if copyright can exist in a short slogan then in some situations it will provide a broader form of protection than even trade mark registration. This is because the scope of a trade mark registration is normally limited to the particular categories of business listed in the registration certificate. So for example a trade mark registration for a slogan in connection with ice cream might not be useful against someone using the same slogan for fertilizer. But if the slogan enjoys copyright protection then that could be relied on against others who use it in relation to markedly different products, so long as they have copied.

Also, in some cases a business might not have a trade mark registration for a slogan but may have used it to such an extent that it qualifies for protection as an unregistered trade mark. In this situation if competitors started using the same slogan then the first business could take action against them for “passing off” or for trading deceptively and thus breaching the Fair Trading Act. However the unregistered trade mark rights are generally limited to the geographical area that the slogan is known in. So for example an unregistered trade mark slogan might be well known in Auckland and be capable of protection in that city. However because it is not known in Dunedin there may be no way of using the law of passing off or the Fair Trading Act to stop a competitor using it there. But if the slogan qualifies for copyright then it may be possible to bring a claim against copying even in geographical areas where consumers have barely heard of the slogan.

While copyright in New Zealand does not need to be registered it is wise to make sure that there is a paper trail to show how and when a copyright work was created. This can help one to prove one”s case against a copyist in the years ahead. Ideally the paper trail should be copied and sent to one”s attorney so that there is a safely stored independent record of it.

While copyright can provide a useful tool in protecting ones slogan it would be unwise to rely on it to the exclusion of registering a trade mark. It is always best to register one”s brand as a trade mark, if at all possible, and then keep the copyright card up one”s sleeve. This is because in at least many situations copyright will not be an effective way of protecting one”s brand rights.

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