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Registering a slogan as a trademark is difficult, because a trademark must indicate the origin of a product and be sufficiently distinctive — and slogans are often merely promotional. Nevertheless, the Court of the European Union ruled that Oatly’s slogan “It’s like milk but made for humans” can indeed be registered as a trademark: a single creative word (“but”) gave the slogan sufficient distinctiveness.
Copyright is usually invoked to protect slogans, provided the slogan is sufficiently creative (see our blog on copyright for quotes and one-liners). In addition, trademark protection is sometimes sought, although case law has been strict regarding this. In a new case, the General Court of the European Union (ECLI:EU:T:2021:21) ruled that an Oatly slogan can indeed be registered as a trademark.
Why registering a slogan as a trademark is so difficult
The case concerned the slogan “It's like milk but made for humans” by Oatly, which makes oat alternatives to dairy. The EUIPO (the EU trademark office) rejected the application, but the General Court overturned that decision.
A brand must fulfill a brand function: it must indicate origin, thus showing which company a product comes from. With classic brand names, this is self-evident; with slogans, it often is not—they are usually laudatory messages without any indication of origin, and are therefore often rejected. In addition, a brand must have sufficient distinctiveness: it must attract attention and be creative.
Why the Court agreed
The Court emphasizes that a slogan with a laudatory tone can simultaneously indicate commercial origin — a slogan can therefore have both an advertising function and an origin function. According to the Court, the Oatly slogan meets this requirement.
The distinctiveness was also in order. The EUIPO considered the slogan a factual statement (milk is for calves, not for humans), but the General Court attaches great importance to the word “but”. This raises questions about the suitability of milk for the human diet. Had it been purely factual, it would have read “It's like milk made for humans”. That single, creatively added word is controversial and prompts the public to think. Since minimal distinctiveness is sufficient for registration, the slogan was allowed to be registered.
Alternatives to protect a slogan
Whether this will make it easier to protect slogans as trademarks remains to be seen. There are also alternatives, such as copyright or registration in the Slogan Register.
Frequently Asked Questions
Can I register my slogan as a trademark?
That is possible, but it is tricky: the slogan must indicate the origin and be sufficiently distinctive. A creative, surprising element can make all the difference.
What alternatives are there to protect a slogan?
Protection through copyright (provided there is sufficient creativity) or registration in the slogan register. Often, a combination of forms of protection is advisable.
Why are most slogans rejected as brands?
Because they are usually merely promotional and do not indicate origin, or lack sufficient distinctiveness. Registration only comes into play when a slogan does more than promote.
Optimal protection of your creative expressions
The trademark specialists at MKB Juristen advise you on the best way to protect your slogan or brand. Schedule an intake meeting .
