Office Location

Delhi:

E-5, 2nd Floor, Defence Colony
New Delhi - 110024
Tel : 011-24336744

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Mumbai:

Office No. 1410, 14th Floor, Maker Chamber V, Nariman Point, Mumbai
Tel : +91 22-22873499

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Gurgaon:

Level 18, One Horizon Center, Golf Course Road, DLF Phase 5, Sector 43, Gurgaon 122002, India
Tel : +91 124 668 8146 / +91 124 668 8147

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Mumbai (Entertainment and Media Practice)

Office No. 213, 2nd Floor, A-wing, Crystal Plaza, Andheri Link Road, Andheri (W), Mumbai.
Tel : 022-62360762

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Mumbai (Corporate and Transactional Practice)

909/A, Capital Building, Bandra Kurla Complex, East Mumbai- 400098

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Bangalore:

21/2, 1st Main Road,
Opp Indian overseas Bank,
Gandhinagar,
Bengaluru - 560009

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Kanpur:

77A, Cantt., Kanpur - 208004

Copyright in Advertising Slogans

The definition of “advertising” is constantly evolving. The Copyright Act 1957 protects copyright “in original works of authorship fixed in any tangible medium of expression.” The work must be “independently created by the author (as opposed to copied from other works)” and possess “at least some minimal degree of creativity” to qualify for protection. A work must be the product of one mind to be copyrightable. Originality is not by itself sufficient; facts, even if they are facts that no one else has discovered, are regarded as the common property of all of us, as are scientific discoveries, mathematical equations and historical theories. Facts are not copyrightable because they are not human inventions; theories are not copyrightable because they are ideas not expression. Copyrights are only intended to protect literary, artistic, musical and dramatic works, not titles, slogans or short phrases. There cannot be the copyright of the Punch Line, Slogans. Section 2(c) and (o) of the Copyright Act, 1957 define “artistic work” and “literary work” respectively. Nimmer on Copyright, Article 20.01 (B) at Page 2-15 “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, after relying on number of authorities, judgements of different High Court’s and the Copyright act 1957 made it clear that slogans are not copyrightable and refused to grant injunction. However if the consumers primarily associate a descriptive slogan and have used it as a mark with one firm’s product, that slogan is deemed to have acquired distinctiveness and is entitled to protection under the Trade Marks Act. Trademark Registration of Slogans under section 9(1) proviso, any trade mark which is demonstrated to be distinctive in fact, will be regarded as distinctive in law and therefore qualify for registration. One or more words, constituted as a slogan mark may be registrable but the onus is on the applicant to show that the slogan has acquired distinctiveness. In “Have a Break” Trade Mark, (1993) the applicant sought to register the mark “HAVE A BREAK” in class 30. Evidence was provided that the applicant had been using the slogan “HAVE A BREAK- HAVE A KIT KAT” has a registered trade mark but the phrase, “HAVE A BREAK” alone had not been used as a trade mark in relation to chocolate, chocolate products, confectionery, candy, biscuits. Therefore, the application for registration was refused. Unless the slogan is in itself inherently distinctive and qualifies as a mark in itself, and the slogan is identified with the product or service so that the consuming public, upon hearing the slogan, relates it to the particular product or service it will not be registered. This requirement means that the slogan has developed what the law refers to as a “secondary meaning.” The best examples of this type of slogan are “Just Do It” (Nike) and “Finger Licking’ (KFC). In sum, protecting slogans is often a very difficult proposition. However, from the marketing as well as the legal standpoint, the more that such slogans are used in tight connection to a product or service, the more weight such use may carry over time in terms of the trademark registration process.