When does copyright protect a slogan?

When does copyright protect a slogan?


Definition of “slogan”
The term “slogan” or “claim” is mainly used in advertising and marketing; it is normally a short sentence that can evoke an idea, a concept, that has an immediate hold on the audience, identifying a particular brand.
An effective slogan can be a very successful marketing tool, examples include the world-famous slogans of Coca-Cola and Nike: “Taste the feeling” and “Just Do It”, respectively.
As slogans are so powerful, however, they are frequently subject of debate in the courtrooms, notably in relation to whether slogans can be accorded copyright protection or not.

How to protect a slogan?
In principle, slogans can benefit from two distinct types of protection. One the one hand, a company wishing to secure the exclusive use of a claim may proceed to register it as a trademark if it is sufficiently distinctive and/or it is perceived by consumers as clearly attributable to the company seeking its registration. For example, the very famous claim “I’m Lovin’It” by McDonald’s was registered as a trademark, whereas, on the contrary, the same protection was denied to the trademark application “Tame it” filed by Wella in relation to hair-care products, as this expression was perceivable as a mere incitement to use those products in order to achieve a given result, but not sufficient to mark its origin from the company clear.
On the other hand, the idea that a slogan could in theory benefit from protection under Article 2(4) of the Italian Copyright Law No. 633 of 1941, as amended (most recently by Legislative Decree 95/2001( (“l.d.a.”), has gained consensus among scholars and the judges. For such protection to be recognized, no registration is necessary, it is sufficient to be able to prove the authorship of the slogan and its creative character.
Despite this, usually this protection is denied in practice, on grounds that, even if one is faced with a claim that is particularly persuasive to consumers, this does not mean that it can be defined as a true literary work.
The prove of the existence of the creative character might be rather challenging an activity, but despite a clear majority of cases of denial, the Italian Supreme Court has, for example, recognized the authorial protection to the slogan “Do you want to do your own thing? DIY is for you,” as it has been defined as a “message easily recognizable and immediately understandable by the public and thus capturing the attention of the consumer” (ruling (ordinanza) of Italian Supreme Court no. 24062/2017).

Thus, to obtain copyright protection, the claim must consist of a creative work that represents an original idea worthy of protection.

Italian Supreme Court denies authorship protection to a slogan inseparable from a well-known trademark
The Italian Supreme Court, with its ruling of March 14, 2022, no. 8276, denied copyright protection to the slogan “500%Fiat” used by the well-known car manufacturer FIAT in the lawsuit brought by the author of the slogan itself. In the case at hand, the alleged author complained of unauthorized use of the claim by FIAT and, in support of his claim for damages for abusive exploitation of the alleged intellectual work, recalled the prior registration of the slogan with the SIAE.
On the merits, both the Tribunal and the Court of Appeal of Florence rejected the author’s claims on the basis of a number of fundamental considerations, which were later confirmed by the Italian Supreme Court.
First, the appellant complained that the Court of Appeals was wrong in its decision, which, on the basis of Article 2, number 4, l.d.a., had denied authorial protection to the claim at issue because it considered it inseparable from the company name “Fiat” and its car model “500.” On the contrary, the author claimed that the “criterion of divisibility of creation” had been expunged from the l.d.a. following the 2001 legislative amendment that implemented the 1998 design directive.
Dispelling any doubt in this regard, the Supreme Court gave credit to the position of the Court of Appeals of Florence, which had pointed out that the repeal that took place in 2001 was limited to works applied to industry.
The Italian Supreme Court, therefore, acknowledged the argumentative correctness of the decisions on the merits, which had pointed out that the use of two strong trademarks (“500” and “Fiat”) within a slogan had a “dragging effect” on the non-notorious part, in this case the percentage alone, going so far as to exclude its originality.
Thus, according to the Italian Supreme Court’s interpretation, a slogan protectable as a work of authorship should possess an independent evocative effect, which should be capable of being appreciated independently from of the possible use of the strong trademark within the slogan.