Registering a slogan as a trademark is a hell of a job. The European court applies the general rule that a slogan used as an advertisement or promotional message has no distinctive character. The public will not perceive that type of sentence as an indication of the origin of goods which means trademark registration is ruled out.
Slogans often have an advertising and promotional function, of course, so you can imagine the high incidence of refusals. A lot of slogans just don’t make it into the trademark register. Following the latest decisions of the European Court of Justice, we took a closer look at slogans rejected by the European trademark office in recent months.
It’s quite a sad collection of rejects. Of course, the applicants can continue to use these phrases, but they will not be protected by law.
Vorspung durch Technik
The ruling on the distinctiveness of slogans remains a grey area. In 2010, the European Court of Justice made an interesting ruling that seemed to open the door to more slogan registrations. According to the Court, Vorsprung durch Technik, an Audi slogan, could be registered as a trademark. Although it is also just a promotional message, the Court says, Vorsprung durch Technik carries (more) meaning which makes the sentence distinctive. The slogan ‘requires a measure of interpretation on the part of the public. Furthermore, that slogan exhibits a certain originality and resonance which makes it easy to remember’. Hmmmm, ‘measure of interpretation’? ‘Originality and resonance’? ‘Easy to remember’? What exactly is the big difference with the rejected sentence Sustainability through Quality? I think it’s complicated.
So which type of slogan can count on trademark protection? The chances seem higher if the sentence contains an element that makes it a little more original and distinctive. Think of certain alliteration, rhyme, a pun, a double meaning or contradiction. For example, Wet dust can’t fly, a slogan for vacuum cleaners, received trademark protection in 2015. A foremost reason for the green light was that the sentence was ‘literally incorrect’ because if dust is wet, it is no longer dust, according to the Court.
Wow no Cow!
For what it’s worth. I also came across the Wow No Cow! slogan refusal statement. The Oatly company applied for dairy products and clothing among other things. Despite initially accepting the slogan, in May 2022 the Board of Appeal ruled that the trademark registration should nevertheless be withdrawn because there was no distinctive character! Yet, in my opinion, the rhyme and rhythm of Wow no Cow! is a perfectly distinctive slogan: original, resonant and easy to remember.
This article was previously published (in Dutch) on Adformatie