Tag Lines – Catchy Yet Elusive As A Trademark?
Just as the image says, I would like to get to the point. But well..it is certainly not that easy! One of the most interesting debatable matters, atleast as far as India is concerned, is the validity of tag lines as trademarks.
So what are tag lines?
As we all know, tag lines are nothing but catchy phrases used by businesses for promotion of their products/services. We come across several tag lines on a daily basis; “Have a break, Have a kit kat, Yeh dil maange more” are some of the popular ones.
Tag lines in India
But what sort of identity do tag lines receive in the Indian scenario? A warm welcome?
A trademark as per Section 2(zb) of the Indian Trademark Act, is “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others ……..” and a mark “includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.” So technically, even a group of words like a tag line is eligible for registration as a trademark, as long as they distinguish the goods/service of the trademark holder, in compliance with the Act.
Yet as far as the Indian trademark milieu is concerned, a decisive “yes” cannot easily be given owing to the generic nature of the words used to form the tag line. Most tag lines are nothing but commonly used English (or regional) words and hence the dispute in allowing them. In the Godfrey Phillips case, with reference to recognising tag lines under the Copyright Act, the Delhi High Court observed that slogans, however distinctive they may have become, are essentially a set of words that form part of ordinary everyday language….” and that they will not fall within the scope of literary or artistic work under Copyright Act.
What the Hon’ble Supreme Court said
But in a landmark judgement, the Hon’ble Apex Court held tag lines, slogans to be valid trademarks but of course the judgement mentions certain qualifications. In the Anchor Health & Beauty Care Pvt Ltd Vs Procter & Gamble case, the Plaintiff successfully defended its tag line “allround protection” against Proctor’s ‘all-around protection.” The Hon’ble Apex Court dismissed the Special Leave Petition filed by the defendant, thereby upholding the ruling of the Division Bench of Hon’ble Delhi High Court. While the Hon’ble High court observed that tag lines were valid, also added that the duty of determining whether the present tag line (allround protection) was valid or not was with the Registrar and the same had not been objected by the Registrar. It is also pertinent to note that the Division Bench was also quick to point out that tag lines were used to project the unique qualities of a product/service which could not be found in similar products/services, i.e they had the ability to distinguish. In my opinion, this aspect is most important, for, if a tag line was one which would apply to/qualify products/services offered by any entity across a particular business, then it is doubtful if it could be termed ‘unique’ or ‘able to distinguish.’ The catch, I think lies here.
A decisive solution?
In any case, the admissibility of tag lines/slogans as trademarks is still in the infant stage at this point and has a long way to go. But the Hon’ble Supreme Court’s decision is a beacon. And of course, the nature of the product /service attached with the tag line, the nature of the tag line itself(descriptive/common to business or unique), the popularity and usage of the tag line all need to be considered and would hence vary on a case to case basis.