Types of Slogans That Can Be Trademarked

There are two main types of slogans commonly utilized in businesses for which organizations and individuals seek federal trademark registration. Similar to the well-known brands mentioned above, the first type is a slogan used for advertisement such as “Got Milk?” (California Milk Processor Board, 1993) or “Finger lickin’ good” (KFC, 1952). These slogans are central to the marketing and advertisement efforts of a company to promote brand awareness, and to otherwise sell a product or service to the consumer. The second type of slogan includes short memorable phrases on merchandise, such as a ball caps, shirts, musical jingles, or bumper stickers, which often illicit humor or evoke other sentimental connection to the indirectly referenced merchandise. For example, the musical refrain  "ba da ba ba ba" of the "I'm Lovin' It" jingle has become ubiquitous with McDonald's.  However, just being musical, amusing, comedic or funny alone does not necessarily warrant trademark protection as such short phrases must also create a connection in the consumer’s mind between that phrase and a product or service.

Thresholds Of Inherent Distinctiveness And Secondary Meaning

Not only must there exist an association between a product or service and the chosen slogan to receive trademark protection, but your slogan must also be at least one or more of the following:

• Inherently distinctive; or, if is not distinctive,
• Your slogan has obtained a secondary meaning. 

What Is Secondary Meaning For A Trademark?

Without inherent distinctiveness, the U.S. Trademark Office will not grant a slogan trademark protection without more. This means that a slogan during its useful life must achieve a secondary meaning such that invokes the mental image of a product or service when experienced by the consumer. If a consumer can experience your slogan in a manner the conjures your product or service to the forefront of their mind, then you will have achieved secondary meaning.

Secondary meanings associated with slogans are typically achieved as follows:

• Five years of continuous use in commerce; or
• Substantial sales and advertising proving secondary meaning.

Common Trademark Office Action Rejections For Slogans

Trademarked slogans are rare, and registration in the trademark office will not come without a challenge. For instance, after receiving the application for a slogan, a typical trademark examiner might decline your slogan based on § 1202.03 or § 1202.04 of the Trademark Manual of Examining Procedure (TMEP): 

• § 1202.03: Refusal on Basis of Ornamentation which states Subject matter that is merely a decorative feature does not identify and distinguish the applicant’s goods and, thus, does not function as a trademark. A decorative feature may include words, designs, slogans, or trade dress. This matter should be refused registration because it is merely ornamentation and, therefore, does not function as a trademark, as required by §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127.

• §1202.04: "Widely used messages" include slogans, terms, and phrases used by various parties to convey ordinary or familiar concepts or sentiments, as well as social, political, religious, or similar informational messages that are in common use or are otherwise generally understood. The more commonly a term or phrase is used in everyday speech or in an associations or affinitve manner by various sources, the less likely consumers will perceive the matter as a trademark or service mark for any goods and services. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229-30 (TTAB 2010); cf. In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1403 (TTAB 2018).

For assistance in registering your slogan, or helping you determine whether your trademark has achieved secondary meaning, our Dallas trademark lawyers can assist you in securing your trademark rights. See more about trademarks on our Trademark web page.