I saw this tweet come through my feed over the weekend.
RT @ilenegold: @fatgirlphd Please tell me you have the phrase “Terminally Soulless Douche Canoe” trademarked and copyrighted.
— Brian Cuban (@bcuban) March 30, 2014
It made me grin, and then my big dorky legal brain kicked in and had to analyze the possibilities.
Can You Trademark a Phrase?
If a phrase is being used as a tagline or slogan for a company or product – think “M’m! M’m! Good!” for Campbell’s Soup or “Just Do It” for Nike – then yes, you can trademark it. If it’s just a phrase that’s not connected to a product or service, then it’s not trademarkable.
The purpose of the trademark is to differentiate similar products and services from each other so consumers know what they’re buying. When you register a trademark, you have to tell the U.S. Patent and Trademark Office what you’re claiming as your trademark (name, logo, slogan, etc.) and on what product or service you’re using it. A cool phrase without a product or service is just a phrase. It can’t be protected with a trademark.
Can You Copyright a Phrase?
The purpose of a copyright is to entice authors and artists to create works by giving them the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. They have these rights the moment the original work is “fixed in any tangible medium.” A phrase is often too short to be original so it doesn’t qualify for a copyright, even if it is fixed in a tangible medium like on paper or a digital file. If a person had a copyright in a phrase, they could stop others from using it in their work and it would create a big mess.
Think about Paris Hilton and “that’s hot.” She does have a trademark that phrase in conjunction with “multimedia entertainment services” and alcoholic beverages. She can stop you from using “that’s hot” as a slogan or product name in those industries, but she can’t stop you from saying “that’s hot” in general.
What about “Terminally Soulless Douche Canoe?”
“Terminally Soulless Douche Canoe” is an awesome phrase. You could use that as a company name, product name, or slogan if you want, but you have to be able to identify what industry that company or product is in. Unfortunately, even though I think it’s highly creative, it’s too short to get a copyright by itself. If it was part of a larger work – such as an essay, blog post, poem, book, or integrated into a work of art – the artist would likely have copyright protection for the larger work, but probably not for the phrase alone.
For more on the difference between trademark and copyright:
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