When Can You Register Your Slogan as a Trademark?
In addition to registering trademarks for words that identify the source of a product—think of the trademark “Nike” for shoes—it’s also possible to trademark a slogan or phrase that customers associate with your brand. For example, slogans like “Just Do It” (Nike), “I’m Lovin’ It” (McDonald’s), and “Because You’re Worth It” (L’Oreal) have all been trademarked. If you want to trademark a slogan, however, there are a few unique challenges to keep in mind.
First, in order for a slogan to function as a trademark, it must clearly identify the company behind the goods or services. For example, if you put a phrase on the front of a t-shirt you’re selling, you can’t trademark that phrase unless a consumer would easily associate it with your company. Given that people are used to seeing all kinds of phrases on t-shirts, it’s highly unlikely that a consumer would identify the phrase with your company (unless that phrase also serves as the name or brand identifier of your company).
Second, your slogan can’t contain what the trademark office calls “merely informational matter.” Examples of such slogans include those that contain common phrases, slogans that provide general information about the quality of the goods or services—think “the best hot dog in Chicago”—or slogans that express widely used social, political, or religious messages. The trademark office has denied registration on that basis to slogans like “Occupy Wall Street,” “Drive Safely,” and “One Nation Under God.”
The issue of trademarking a slogan came up in a recent case concerning the phrase “Everybody vs. Racism.” After an applicant sought to register the slogan to use on merchandise such as tote bags and t-shirts, the trademark office rejected the application on the basis that consumers view the phrase “as a sentiment rather than a source,” particularly after its widespread use to protest racism in the wake of the 2020 police killing of George Floyd. While the applicant argued in appealing the trademark office’s decision that the slogan should be viewed in the same category as “Make America Great Again” (which was successfully trademarked by Donald Trump’s presidential campaign), the U.S. Court of Appeals for the Federal Circuit disagreed, finding that, even though “Make America Great Again” contains a widely used slogan constituting informational matter, it also functions as a source-identifier for the Trump campaign. “Everybody vs. Racism,” on the other hand, did not clearly identify the company behind it. In affirming the denial of registration, the court further noted that registering trademarks like “Everybody vs. Racism” would undermine trademark law "to the detriment of the public who would no longer free to express common sentiments without the threat of paying a licensing fee to someone who sees an opportunity to co-opt a political message.”
If your proposed slogan is rejected by the trademark office, you can respond by providing evidence that relevant consumers recognize the slogan as a source indicator that distinguishes your goods or services from those of others. As the “Everybody vs. Racism” decision shows, however, trademarking slogans containing social or political messages may be an uphill battle, particularly if the trademark office finds that doing so could deter important public discourse.
Our firm regularly advises on trademark issues. Feel free to contact us if we can be of help.