One of the fundamental criteria of trademark law is that a mark must be sufficiently distinctive to differentiate a business’s goods and services from those of other enterprises. This principle has become central to the commercial strategies of many businesses. Studies reveal that attention spans can drop by up to 25% annually, with attention on social media platforms lasting as little as 19 seconds. In light of these findings, it has become increasingly challenging to capture consumers’ attention compared to previous years. This decline in attention has prompted businesses to intensify their efforts to engage consumers with their brands. As a result, there has been a growing trend towards memorable slogan trademarks. Slogans, as powerful marketing tools, are direct expressions aimed at consumers. But what is the current situation regarding the increasingly popular slogan trademarks?
While there is no specific regulation governing slogan trademarks under Turkish law, such expressions can be protected through various legal frameworks, including trademark law, copyright law, and unfair competition law. However, while this diversity offers a multifaceted approach to protection, it does not necessarily mean that protection has become broader or easier. To protect a slogan:
- under trademark law, it must be demonstrated that the slogan serves the function of a “trademark”.
- under copyright law, it must be one of the elements specified to benefit from copyright protection and must meet the relevant criteria, such as originality, and distinctiveness of the owner,
- under unfair competition law, it must be established that the slogan has made a commercial impact and that its unauthorized use by others would constitute “unfair competition.”
As expected, establishing these elements necessitates a more nuanced and multifaceted approach rather than a uniform method.
Let’s take a brief look at each of these areas:
Under Trademark Law
Although slogan trademarks are commonly registered under trademark law and might be considered a distinct “subtype,” they are not formally classified as such. There are no specific formalities for their registration. In other words, slogan trademarks follow the same registration procedures and processes as traditional trademarks, with their registrability and similarity being assessed based on the same fundamental criteria.
It is essential to examine whether the slogan fulfills the function of a trademark, specifically whether it: (i) distinguishes a business’s goods/services from those of others, (ii) can be exclusively attributed to the trademark owner, and (iii) clearly and definitively indicates the scope of the protection granted to the trademark owner.
Although registration of slogan marks is procedurally possible and encountered in daily life, their registrations are not easy compared to the traditional marks. Indeed, for the registration, the slogan should be highly distinctive and/or have a distinctiveness acquired through use. This issue should be considered as follows: The function of a trademark is to ensure that the goods or services of an enterprise are distinguished from the goods or services of other enterprises. the basic criteria that actually exists for every trademark to be registered appear a little stricter for slogan trademarks due to the nature of the slogan concept. In that regard, in the case of a slogan trademark that is not entirely original/ unique, it will be of particular importance to demonstrate that distinctiveness is achieved through use and to provide solid evidence for this.
Under Copyright Law
Under Turkish copyright law, except for some elements that are subject to bandrol/ official stamp, works do not need to be registered to receive copyright protection. Although some registration mechanisms can be utilized voluntarily, the primary condition for benefiting from copyright protection is that the slogan must be original and reflect the personal characteristics of its owner. While it is theoretically possible to protect an expression with these qualities, in practice, challenges frequently arise. The reason for such difficulties lies in the fact that claiming and proving the originality and individuality of an expression beyond any doubt requires comprehensive research and detailed information about the creation and use of the slogan.
Under Commercial Law – Unfair Competition
One of the important elements for a slogan to be protected within the scope of unfair competition is that the expression in question must demonstrate its affiliation and presence in the commercial world as if it were a product of the related institution, and that this presence has become synonymous with that institution. Similar to the protection related to copyright law, although theoretical protection is possible here, in practice, a relatively challenging process emerges. However, based on our experiences, it is considered that protection in the sense of unfair competition is relatively more applicable than protection under copyright law. This is because, in some cases, the “distinctiveness/ originality/ association with the owner” required in terms of unfair competition can be more flexible compared to copyright law.
In conclusion, it is possible to protect slogans in various ways in the Turkish legal system. As has been illustrated, the determining factor here is the originality of the slogan in question.
