January 06, 2015

Lawyers Make Good Lovers

by Guest Blogger

Are slogans like "Lawyers Make Good Lovers" used on t-shirts protected by trademark law?

Probably not.

A slogan is generally not protectable under trademark law, unless it also serves as a trademark. As a reminder, to be a trademark words or symbols must function as commercial indicators of the source of goods. The U.S. Patent and Trademark Office often deems wording that appears across the front of a T-shirt to be mere ornamentation for the goods â in other words something that just makes the product more aesthetically appealing to consumers.


Amy's son Joseph wearing a t-shirt with an unprotectable slogan.

So how do you make a slogan into a trademark? Use it as one.

Wording or designs that appear on sewn-in tags or labels appearing either inside or on the outside of clothing, or that are embroidered on sleeve hems or pockets look like trademarks to consumers. Trademarks may also be used on less permanent merchandise markers such as stickers or hangtags. Including the slogan in these "traditional" locations does not prevent you from displaying it prominently across the front (or back) of the shirt as well.

Turning a slogan into a brand may take a little extra effort â but it can be done. The owner of the popular phrase "Keep Calm and Carry On" â a phrase that traces its origins to a WWII morale boosting poster issued by the British government â has strengthened its claim to trademark rights by expanding use of the mark to include different types of merchandise and services, and was successful in obtaining a registration for the mark from the U.S. Patent and Trademark Office (although it arguably continues to obtain the ornamental benefits of using the phrase on products, including t-shirts, posters, and mugs (http://www.keepcalmandcarryon.com/)).

Keep Calm And Carry On1 E1420562330729

(Coindentally, this mug is currently sitting on Mari-Elise's desk)

Using a slogan as a trademark does not mean that the business that makes the products must include the wording as part of its business name. Trademark law makes clear that consumers need only perceive a trademark as indicating a single source of goods, not that consumers must know what that source is.

What about copyright law you might ask? There have been very few cases where a short phrase is so highly creative as to warrant copyright protection. "I like to gamble, I like to smoke. I like to drink and tell a dirty joke" was held insufficiently creative to invoke copyright protection. But the following lines were sufficiently "clever" (i.e. included enough original content) to invoke copyright protection:

"I may not be totally perfect, but parts of me are excellent" and
"I have abandoned my search for truth and am now looking for a good fantasy"

Both of these "turns of phrase" were copied from an owner who had created them for use on merchandise and were included by the infringer on competing t-shirts, facts that were likely relevant to court's decision.

Our advice -- if you have a clever quip and want to prevent others from copying it, do more than splash it across a t-shirt. Seek trademark counseling with an eye toward federal registration with the U.S. Patent and Trademark Office.

In case you wanted to know more about the story behind the "Keep Calm and Carry On" slogan, check out this YouTube video:

The lawyers at Trademarkology provide trademark registration services backed by the experience and service of one of the nation's oldest law firms. Click here to contact us.