Can Slogans/Tag Lines Be Copyrighted In India Or Abroad?

Many brands, during business, compose and develop phrases or catchy combination of words with a view to create a lasting impression in the minds of the consumers, to augment popularity of their goods and/or services. These phrases essentially constitute of a slogan or tagline associated with the said product or service and are used for the purposes of advertising or expanding brand identification, as well as improvement of product/service sales, e.g., on coming across the phrase, “The Taste of India”, a person instantly recollects the dairy products manufactured by Amul. Similarly, phrases like “Because you’re worth it” and “Just do it” are famously associated with L’Oréal and Nike respectively. Upon such slogans/taglines gaining popularity, it becomes imperative for proprietors of such products/services, with which these slogans/taglines are associated with, to protect them against the risk of duplicity, which would in turn lead to loss of revenue for the bona-fide owner of the product or service. This article will now address upon whether slogans/taglines enjoy protection under the Copyright mechanism in India & abroad.

Indian Perspective

The Indian Copyright Act, 1957 at the very outset states that original literary, dramatic, musical and artistic work, cinematograph films and sound recordings are protected under the copyright regime[1]. In view of the same, certain applications had been also filed for registration of Slogans/Taglines under purview of being a “literary work” [2], however the courts have observed and indicated their disinclination towards granting protection to Slogans/Taglines under the Copyright Act.

The High Court of New Delhi in Pepsi Co. Inc. and Ors Vs. Hindustan Coca Cola Ltd. And Anr. [3], whilst adjudicating on whether protection could be provided to distinctive slogans employed by companies under the Indian Copyright Act, observed and held that no protection could be afforded to slogans under the Copyright Act, 1957 as much as the same does not satisfy the threshold of originality for it to be regarded as a “literary work”. Alternatively, the Court observed that protection could instead be granted under the Trademarks Act, 1999, for an action of passing-off under Section 27.

A similar view was adopted by the High Court of Delhi in Godfrey Phillips India Ltd. Vs. Dharampal Satyapal Ltd. And Anr[4], wherein the Court held: –

“15. am of the view that the slogan “Shauq Badi Cheez Hai”, being combination of common words, would not fall within the scope of “Artistic/literary work” under the Act. Slogan “Shauq Badi Cheez Hai” does not appear to be an outcome of great skill, inasmuch as, it uses the short stereo type combination of words. In fact, both the slogans, that is, “Shauq Badi Cheez Hai” as well as “Swad Badi Cheez Hai” are commonly spoken in Hindi language in day to day life. That apart, the slogans, in my view, are not copyrightable. Plaintiff can at best press for a passing off action by making out a case in its favor”

It is therefore abundantly clear, by virtue of the law elucidated upon above, that in India, brand slogans and taglines cannot be afforded with copyright protection on account of the generic nature of the phrases encompassing the same. Nevertheless, a brand tagline/slogan can be protected as a trademark under the Trademark Act 1999 which defines “mark” as a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof.[5] Further, in order to qualify as a trademark, the brand tagline/slogan must have acquired reputation and goodwill so as to be distinctive.

Foreign Perspective:

In the matter of Miglio Andrea Vs. Fca Italy S.p.A., dated March 14, 2022 [6]decided by the Italian Supreme Court of Cassation, it was held that the crucial aspect while adjudicating upon the aspect of copyrightability of slogans, is to establish whether the said slogan has an autonomous evocative effect which is independent from the trademark/ names of the advertised products to which they refer. The Court observed that the slogans may not be considered original enough for the purposes of copyright in event it contains direct reference to the trademark which has a strong evocative power that is likely to prevail on other elements within the slogan. It is imperative to highlight that judgments passed by the Italian Supreme Court of Cassation are not binding precedent, and are only applicable on parties to the dispute.

A similar position exists in the United States of America, wherein the United States Patent Trademark Office (USPTO) has clearly stipulated that slogans cannot be copyrighted since they contain an insufficient amount of authorship, and that the USPTO shall not register any such slogans even if the word or short phrase is novel, distinctive, or lends itself to a play on word.[7]

The Supreme Court of Ontario in the matter of Francis Day & Hunter Limited Vs. Twentieth Century Fox Ltd. And Anr (Privy Council Appeal No. 94 of 1983[8]) observed, albeit in the context of a movie title, that the title to a film was not a literary work capable of attracting copyright protection as such titles do not involve literary composition and therefore would not be sufficiently substantial to justify claims of copyright infringement.

Similar position exists in the United Kingdom where slogans/taglines, whilst not enjoying copyright protection, are afforded protection under the trademark regime.

Slogans/taglines, being devoid of great skill and lacking originality, thus being incapable of being considered as a ‘literary work’, do not enjoy Copyright protection in India and in countries such as Italy, the United States of America, Canada and the United Kingdom. Whilst, slogans/taglines augment visibility of products they are associated with, protection of the same against infringement and passing off by illegitimate users, is subject to the standards as laid down by the judiciary. However, brands can ensure protection of their slogans and taglines under Trademark law, as the same are capable of qualifying as a mark under the Trademarks Act 1999, subject to the said slogan/tagline mark being inherently distinctive or having had acquired substantial goodwill and reputation as on the date of the filing of the application for registration.

The author is an Advocate, views are personal.

Source: LiveLaw