Registrability: Slogans

Charrier Rapp & Liebau in cooperation
with Waibel Rubach Hoppert & Kollegen, Germany by Dr. Elisabeth Vorbuchner LL.M.

The German Patent and Trademark Office has always maintained its opinion that advertising slogans are not protectable as trademarks. The Federal Patent Court too, in its decisions on slogans "Nicht immer, aber immer öfter" (Not always, but more and more often"), "WELCH EIN TAG" ("What a day") or "GEGEN DAS VERGESSEN" ("Against forgetting") also reiterated that statements of this kind are not sufficiently distinctive and original to be eligible for trademark registration. According to the Patent Court, these slogans may suit many products and fail to indicate their origin from a certain company, which is a precondition for trademark protection. However, slogans like "Lass' dir raten, trinke Spaten" (Take good advice, drink Spaten"), "Persil bleibt Persil" ("Persil remains Persil") or "Mach mal Pause - trink Coca-Cola" ("Take a break -drink Coca-Cola") are protectable in Gemany because they contain the name of the company or (well-known) product.

The Community trade mark Office, in charge of the protection of trademarks on a pan-European level since 1995, fortunately has a more liberal attitude toward advertising slogans and does not insist on an indication of the manufacturer for reasons of distinctiveness. The Office accordingly ruled in May 1999 that the slogan "Früher an Später denken!" ("Start thinking about later earlier") is sufficiently distinctive and can thus be registered for the services "property consulting and financial services". A good year before, on the question of the protectability of the slogan "BEAUTY ISN'T ABOUT LOOKING YOUNG BUT LOOKING GOOD" for cosmetic articles, the Office had even stated that slogans need not be especially original to be eligible for trademark registration.

The following slogans have, for example, thus been protected throughout the European community: "Erfolg braucht Flügel" ("Success needs wings"), "FIT 4 ALL"; "FEEL YOUR HAIR, NOT YOUR HAIRSPRAY", "I CAN'T BELIEVE IT'S YOGHURT", "Musik ist Trumpf", ("Music is the word"), "MAKE BEER NOT WAR", "Plaudern & Sparen" ("Chat and save"), "QUALITÄT IST, WENN DER KUNDE ZURÜCKKOMMT UND NICHT DIE WARE" ("Quality is when the customer comes back and not the merchandise"), "THE BEST BRITISH CLOTHING FOR THE WORST BRITISH WEATHER", "TWICE AS NICE".

It is not all that difficult to obtain trademark protection for advertising slogans throughout the European Community.