Can You Trademark & Copyright a Phrase?

What's not wrong with PIPA or SOPA? by opensourceway from Flickr (Creative Commons License)

What’s not wrong with PIPA or SOPA? by opensourceway from Flickr (Creative Commons License)

I saw this tweet come through my feed over the weekend.


It made me grin, and then my big dorky legal brain kicked in and had to analyze the possibilities.

Can You Trademark a Phrase?
It depends.

If a phrase is being used as a tagline or slogan for a company or product – think “M’m! M’m! Good!” for Campbell’s Soup or “Just Do It” for Nike – then yes, you can trademark it. If it’s just a phrase that’s not connected to a product or service, then it’s not trademarkable.

The purpose of the trademark is to differentiate similar products and services from each other so consumers know what they’re buying. When you register a trademark, you have to tell the U.S. Patent and Trademark Office what you’re claiming as your trademark (name, logo, slogan, etc.) and on what product or service you’re using it. A cool phrase without a product or service is just a phrase. It can’t be protected with a trademark.

Can You Copyright a Phrase?
Probably not.

The purpose of a copyright is to entice authors and artists to create works by giving them the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. They have these rights the moment the original work is “fixed in any tangible medium.”  A phrase is often too short to be original so it doesn’t qualify for a copyright, even if it is fixed in a tangible medium like on paper or a digital file. If a person had a copyright in a phrase, they could stop others from using it in their work and it would create a big mess.

Think about Paris Hilton and “that’s hot.” She does have a trademark that phrase in conjunction with “multimedia entertainment services” and alcoholic beverages. She can stop you from using “that’s hot” as a slogan or product name in those industries, but she can’t stop you from saying “that’s hot” in general.

What about “Terminally Soulless Douche Canoe?”
“Terminally Soulless Douche Canoe” is an awesome phrase. You could use that as a company name, product name, or slogan if you want, but you have to be able to identify what industry that company or product is in. Unfortunately, even though I think it’s highly creative, it’s too short to get a copyright by itself. If it was part of a larger work – such as an essay, blog post, poem, book, or integrated into a work of art – the artist would likely have copyright protection for the larger work, but probably not for the phrase alone.

For more on the difference between trademark and copyright:

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Comments

  1. How can you tell if a phrase (not the design) on a tshirt or some other product is trademarked? Is there a way of checking yourself?

    If it’s not is there any reason that you couldn’t also use it on a product?

    Thanks Ron

    • Ruth Carter says:

      You can run a search on http://tmsearch.uspto.gov/.
      If someone hasn’t registered a phrase, someone may have registered something similar and it’s possible that someone has common law rights in a similar phrase without registering it. I tell everyone to do their “homework” when developing their brand. When in doubt, hire a lawyer for a consult to discuss your ideas.

Trackbacks

  1. […] If that’s all you’re selling – word or a phrase on a shirt – there’s likely nothing you can do (from a copyright perspective) to stop your competition from selling a shirt with the same phrase on it. If you look on any of these DIY shirt and craft sites, you’ll see the same phrases on shirts from different sellers. There’s no copyright protection for words, images, or phrases like “geek,” “reasonable person,” “Introverts Unite! Separately in your own homes,” and even more creative phrases like “terminally soulless douche canoe.” […]

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