Expert: Peter Gabany - 1/30/2008

Question
QUESTION: I want to find out if other related service organizations already have a slogan that is the same or similar to something I am considering. And if I find out there are some, what is my legal liability of using it?

ANSWER: Let's get this straight - I am NOT a lawyer.

That said - if you can document all reasonable effort to research a prospective slogan and you can't find it being used then you should be free and clear to use same.

But what to do on historic slogans? Like  - Show your cheddar more warmth - circa 1972 Terry O'Malley. They would still have copyright and possibly Trade Marked so stay away.

Successful ad campaigns that have been used try and avoid.

Now all that said. If you came up with Perrrrfect pussy as a cat food slogan and it was used for a pet cemetery far out of your region, is not trade marked then I would use it.

Many times we have come up with concepts as logos, ads, headlines and slogans and later seen them used - sometimes in award magazines. We have never once been approached with a cease of use order - and typically this is what happens - you are requested to stop using the slogan.

In some cases however where a slogan is proven to be used in International circles - such as Just Do It - Nike - then the company's lawyers come out and sue. It is very litigious out there so do your homework as best you can. Thankfully we have the internet as a research tool.

One last thing - Once you have coined the slogan, either try and register its use (costly) and/or write a letter to yourself, dated with today's date and mail it to yourself, sealed sent Registered mail. DO NOT OPEN IT.

If someone uses your slogan or any other intellectual property you can take the unopened letter to court and have the judge open it. This can be your proof that you were using it first and the judge may award in your favour. The only place that I know this might not pass is if the other party registered it - even after seeing yours - they may be deemed to own trademark rights and you are out of luck.

But the more you do your homework, and prepare for this eventuality the better off you can be.

Thank you for your question,

Pete

---------- FOLLOW-UP ----------

QUESTION: thanks--good advice. Do you know of a source of registered or copyrighted slogans? In my case, the slogan is regularly used as a headline such as "winning the battle against smoking". More than one person on my board feels they have seen it used in an ad campaign but not necessary a slogan. the more generic it is, the safer it should be to use it right?

Answer
There is no registry that I know of. Something that I forgot to mention though is phrases like the one you presented that are of such a generic nature it is near impossible to copyright them. Please, do a search for “winning the battle against smoking” on Google and you will find one for smoking, psoriasis, tobacco, fuel tax, heart disease, nicotine and more.

And please note - some of these are NOT slogans just lines.

One last thought - try coming up with something that is as poignant but better and your own!

Best of luck, do your homework and write often.

Pete