Protecting ‘It’s the real thing’

Slogans are expressions, phrases or advertising signs which, through catchy phrases, easily and quickly remind the public of a certain product or service of a specific brand and can indicate whether one is successful or famous.

Although valuable to branding, marketing and advertising, in Brazil slogans have softer and more flexible protection than a trademark; since the Brazilian Industrial Property Law of 1996, they are no longer protectable by any kind of public title or registration. Public titles, such as trademark registrations, are normally strict, and provide some degree of legal certainty and rights to publicity, apart from establishing a priority date, which can be important in a legal proceeding.

Until the Brazilian Industrial Property Law changed, in 1996, it was possible to register a slogan as a trademark, or even on its own, with a specific slogan registration, which was also under the authority of the Brazilian Patent and Trademark Office (INPI). The specific registration lasted three years, with the possibility of unlimited, successive extensions. If the titleholder introduced any modification in the slogan, the registration granted became null, and a new request needed to be filed, so it was generally recommended not to make changes to them.

The South American trade bloc Mercosur’s Protocol on Harmonization of IP Norms on Trademarks and Geographical Indications, through its Common Market Council’s decision 8/95, in which there was an effort to harmonise some of the IP protections among member countries, recommended the protection and registration of slogans was possible through trademarks. However, even though this protocol was brought before congress in Brazil as Draft Legislative Decree 475/97, it was withdrawn from the Congress agenda in 2000.