Getting trademarked has never been so easy! You just need to say it, have someone hear it and it's yours!
Not quite. But a little know fact about trademarks is that a slogan doesn't need to be registered for you to have the rights to it, according to a recent Forbes piece.
It's like that old philosophical question -- if a tree falls and nobody's there to hear it, does it make a sound? Similarly, if you say a phrase and nobody's around to hear it, does it legally belong to you?
If you've been using a particular slogan, it might already be yours. That's what the professional athletics industry has shown. The recent Forbes article outlines the use of slogans in major league sports and shows how many of these slogans become legally linked to sports franchises and players, despite never having been registered.
And for those in the industry who apply for registration of words or a slogan they've used regularly, they seemingly jump through minimal hurdles to get their mark registered with the U.S. Patent and Trademark Office.
So use of a particular mark is playing an ever increasing role in the legitimacy and ownership of a mark.
Here's the common misconception: You don't need to file formal paperwork in order to own the intellectual rights to a phrase or a slogan. You just need to make regular and open use of it. And your use needs to be exclusive.
However, the whole process of applying for and registering a trademark is a good way to protect your rights in a slogan. But it's not mandatory. And it's not the only way to protect your intellectual property rights.
You can establish the right to a statement or slogan by legitimate use. And when you apply for a trademark and get it registered, you now have a stronger case that the intellectual property belongs to you. Generally, you may trademark even a slogan if the public now relates it to your goods or services. Even if that slogan is "Can't Wait" (apparently). Once you put the public on "constructive notice" that the mark belongs to you, it's yours to enforce.
You will also have a stronger case against anyone who tries to use it after you. Go ahead, Just Do It (TM).
February 27, 2013 Editor's Note: This post has been updated to clarify that even a slogan that does not directly identify the source of goods or services can be trademarked if the slogan has come to have the necessary "secondary meaning" so as to be associated with those goods or services by the public.