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
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 abundantly clear, by virtue of the law elucidated upon above, that in India, brand slogans and taglines cannot be afforded copyright protection because 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.
