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.
What is copyright
Copyright is a type of intellectual property right. Authors who have original works such as works of literature (including computer programs, tables, collections, computer datasets, expressed in words, codes, schemes, or in any other context, along with a device readable medium), dramatic, musical, and artistic works, cinematographic films, and audio recordings are all awarded copyright safeguards under Indian law. Instead of protecting the ideas themselves, Copyright Law safeguards manifestations of ideas. Literary works, theatrical works, musical works, creative works, cinematographic films, and sound recordings all have copyright protection under Section 13 of the Copyright Act of 1957. For instance, the Act protects literary works such as books and computer programs.
The term “copyright” refers to a collection of exclusive rights that Section 14 of the Act grants to the owner of the copyright. Only the copyright owner or another person who has permission to do so from the copyright owner may exercise these rights. These rights include the ability to adapt, reproduce, publish, translate, and communicate with the public, among other things. Copyright registration just establishes an entry for the work in the Copyright Register kept by the Registrar of Copyrights and does not grant any rights
Objectives of copyright law
Copyright is primarily intended to advance science and useful art and to compensate authors for their labour. In order to do this, copyright guarantees authors the right to their creative expression while allowing others to openly expand upon the concepts and knowledge
presented in a work. The primary goals of copyright law are twofold. First and foremost, copyright laws were created by nations to guarantee the original expression of writers, songwriters, designers, artists, and other creatives, as well as film and sound recording producers, who risked their money to present their works to the public.
Second, a work’s knowledge and suggestions can be freely expanded upon by others, thanks to copyright legislation. Additionally, it permits some unrestricted uses of copyrighted content. The Copyright Act of 1957 outlines the range of these permissible uses. To establish harmony between the rights of the copyright owner and the welfare of people to the greatest possible degree in the interest of society, measures relating to free use are included in the Act. The Madras High Court held that “copyright law is to preserve the fruits of a man’s effort, labour, talent, or test from annexation by other persons” in Sulamangalam R. Jayalakshmi v. Meta Musicals, Chennai (2000).
Subject matter of copyright
All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected for the following works:
- Original Literary Work,
- Original Dramatic work,
- Original Musical work,
- Original Artistic Work,
- Cinematography films, and
- Sound recordings.
The published and unpublished works of architecture are discussed in Section 13(2). If the work is published, it must be published in India. If the work is published outside of India, the author must be an Indian citizen at the time of publication or at the time of his death. Except for works of architecture, the authors of unpublished works must be Indian citizens or have a place of residence in India. When it comes to architectural works, only the work itself must be from India and not the architect, because architectural works can also be done in written form. The copyright in an architectural work shall only apply to the creative character and design and shall not include the construction process or processes
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. In view of the same, certain applications had been also filed for registration of Slogans/Taglines under purview of being a “literary work”, 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., 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., 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 therefore abundantly clear, by virtue of the law elucidated upon above, that in India, brand slogans and taglines cannot be afforded with copyright protection on account 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. Further, in order to qualify as a trademark, the brand tagline/slogan must have acquired reputation and goodwill so as to be distinctive.
In the matter of Miglio Andrea Vs. Fca Italy S.p.A., dated March 14, 2022 ,decided by the Italian Supreme Court of Cassation, it was held that the crucial aspect while adjudicating upon the aspect of copyright ability of slogans, is to establish whether the said slogan has an autonomous evocative effect which is independent from the trademark/ names of the advertised products to which they refer. The Court observed that the slogans may not be considered original enough for the purposes of copyright in event it contains direct reference
to the trademark which has a strong evocative power that is likely to prevail on other elements within the slogan. It is imperative to highlight that judgments passed by the Italian Supreme Court of Cassation are not binding precedent, and are only applicable on parties to the dispute.
A similar position exists in the United States of America, wherein the United States Patent Trademark Office (USPTO) has clearly stipulated that slogans cannot be copyrighted since they contain an insufficient amount of authorship, and that the USPTO shall not register any such slogans even if the word or short phrase is novel, distinctive, or lends itself to a play on word.
The Supreme Court of Ontario in the matter of Francis Day & Hunter Limited Vs. Twentieth Century Fox Ltd. And Anr (Privy Council Appeal No. 94 of 1983) observed, albeit in the context of a movie title, that the title to a film was not a literary work capable of attracting copyright protection as such titles do not involve literary composition and therefore would not be sufficiently substantial to justify claims of copyright infringement.
Similar position exists in the United Kingdom where slogans/taglines, whilst not enjoying copyright protection, are afforded protection under the trademark regime.
Slogans/taglines, being devoid of great skill and lacking originality, thus being incapable of being considered as a ‘literary work’, do not enjoy Copyright protection in India and in countries such as Italy, the United States of America, Canada and the United Kingdom. Whilst, slogans/taglines augment visibility of products they are associated with, protection of the same against infringement and passing off by illegitimate users, is subject to the standards as laid down by the judiciary. However, brands can ensure protection of their slogans and taglines under Trademark law, as the same are capable to qualify as a mark under Trademarks Act 1999, subject to the said slogan/tagline mark being inherently distinctive or having had acquired substantial goodwill and reputation as on the date of the filing of the application for registration.
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Article by Drishti verma