Can You Trademark a Slogan or Tagline in Australia?

“Just Do It.” “I’m Lovin’ It.” “Because You’re Worth It.”

Sometimes a handful of words can become almost as recognisable as the business name or logo they sit alongside.

That raises an interesting question for business owners: can you trademark a slogan or tagline in Australia?

The short answer is yes — potentially.

A slogan can be registered as a trade mark in Australia. But simply coming up with a clever phrase does not automatically mean you can own it. The real question is whether your slogan is capable of functioning as a trade mark — something that distinguishes your goods or services from those of other businesses.

And that is where the distinction between a memorable brand asset and ordinary advertising language becomes important.

What makes a slogan a trade mark?

We tend to think of trade marks as business names and logos, but a trade mark can take many forms, including a phrase or combination of words.

IP Australia specifically recognises that multi-word trade marks can include slogans, mottos, maxims and other phrases. Importantly, slogans are assessed using essentially the same principles as other word trade marks.

The key question is whether the slogan is capable of distinguishing your goods or services from those of other traders.

In practical terms, ask:

When someone sees this phrase, does it tell them whose product or service this is — or does it simply tell them something about the product?

That distinction matters.

The problem with descriptive taglines

Imagine you run a cleaning business and adopt the tagline:

“Professional Cleaning You Can Trust.”

It might be perfectly good marketing copy.

But it is unlikely to be a particularly strong trade mark.

Other cleaning businesses have a legitimate reason to describe themselves as professional and trustworthy. Trade mark law generally shouldn't allow one business to monopolise words that competitors reasonably need to describe their own goods or services.

IP Australia identifies descriptive words and phrases as a common reason a proposed trade mark may lack distinctiveness. Its guidance also notes that common sayings such as “One Stop Shop” can be difficult to register for the same reason.

The same problem can arise with highly promotional or laudatory phrases — words that essentially tell consumers that something is excellent, superior or desirable.

So phrases such as:

• “Quality You Can Trust”
• “Simply Better”
• “Exceptional Service Every Time”
• “The Best Choice for Your Business”

may sound appealing in an advertisement, but their very usefulness as advertising language can make them harder to monopolise as trade marks.

What makes a slogan more distinctive?

Compare those phrases with something like “Just Do It.”

It doesn't describe shoes, clothing or sporting equipment.

Instead, it creates an idea and an association with the brand.

The same is true of many successful taglines. They might be suggestive, playful, unexpected or emotionally resonant rather than directly describing what the business sells.

That doesn't mean every creative slogan will automatically be registrable. An examiner will still consider the particular phrase and the goods or services for which protection is sought.

But from a brand protection perspective, there is an important lesson here:

The more your tagline sounds like something only your business would say, rather than something every competitor might reasonably want to say, the stronger your starting position is likely to be.

This reflects the broader approach under Australian trade mark law: whether other traders are likely, in the ordinary course of business, to want to use the same or a very similar expression is relevant to whether the mark can distinguish one trader's goods or services.

Context matters

Trade mark distinctiveness isn't assessed completely in the abstract.

The goods and services matter.

A phrase might be descriptive in one industry but distinctive in another.

This is similar to ordinary word trade marks. A word can have an everyday meaning and still function perfectly well as a trade mark where that meaning has no obvious connection with the relevant product.

So when considering whether your slogan is protectable, don't simply ask:

“Is this phrase unique?”

Ask:

“What does this phrase mean when it is used in connection with the particular goods or services we provide?”

That is a much more useful question.

What if you've already been using the slogan for years?

This is where things can become interesting.

A slogan that isn't particularly distinctive at the outset may, in some circumstances, become distinctive through use.

Perhaps you've used the same tagline prominently for many years. It appears on your website, packaging, signage, advertising and social media. You've invested substantially in promoting it, and customers have started associating that phrase specifically with your business.

Depending on the circumstances, that history may help establish that the phrase has become distinctive of your goods or services.

IP Australia says evidence relevant to a distinctiveness objection can include matters such as:

• when the trade mark was first used;
• whether use has been continuous;
• the geographical extent of use;
• advertising expenditure;
• turnover;
• market share; and
• importantly, how the mark has actually been used in connection with the goods or services.

But there is an important strategic point here.

Evidence of use isn't a magic cure for a fundamentally descriptive phrase.

If consumers are still likely to understand the words simply as a description or advertising message, years of use won't necessarily transform them into a trade mark. IP Australia's own guidance gives the example of descriptive words used consistently on packaging that consumers would nevertheless continue to understand as describing the product rather than identifying its source.

Advertising use and trade mark use aren't necessarily the same thing

This is another distinction businesses sometimes miss.

Putting a sentence in an advertisement doesn't necessarily mean you are using it as a trade mark.

Suppose your website says:

Experience service you can rely on.

That might simply be advertising copy.

Now imagine you consistently display a distinctive phrase immediately underneath your logo. It appears on your website, packaging, email signatures, advertising and signage. You deliberately use it as a consistent part of your brand identity.

That begins to look quite different.

If you want a tagline to become a genuine brand asset, consistency matters.

Treat it as part of your brand, rather than changing it every six months with the next marketing campaign.

Should you register your slogan separately from your business name?

Sometimes, yes.

If the slogan has genuine standalone value to the brand, there can be good reasons to consider separate protection.

For example, perhaps customers regularly repeat the phrase. You use it across multiple campaigns and product lines. It appears independently of your main logo. Or you expect it to become an enduring part of the business's identity.

In those circumstances, the slogan itself may be an asset worth protecting.

On the other hand, if it is simply this year's marketing line and is likely to disappear when the next campaign launches, registration may not be commercially worthwhile.

IP strategy isn't about registering everything that could potentially be registered.

It is about identifying the intellectual property that matters to the value of the business and protecting it appropriately.

Search before you fall in love with the tagline

There is another issue entirely separate from distinctiveness.

Someone else may have got there first.

Before investing in signage, packaging, advertising or a major launch around a new tagline, it is worth searching for existing trade marks and marketplace use.

IP Australia examines applications not only for distinctiveness but also for potentially conflicting earlier trade marks. Similarity can become a problem where an earlier mark is sufficiently close and covers the same or similar goods or services.

This is particularly important if the tagline is going to become a significant part of your brand.

Finding a problem before you've printed 20,000 boxes is considerably easier than finding it afterwards.

Five questions to ask before adopting a new slogan

If you're developing a tagline for your business, ask:

1. Does it describe what we sell?

The more descriptive it is, the more difficult exclusive trade mark protection may be.

2. Could our competitors reasonably want to say the same thing?

If the answer is yes, that may indicate a distinctiveness problem.

3. Is it genuinely memorable and unusual?

Distinctive branding tends to make stronger trade marks.

4. Has anyone else already registered or used something similar?

Search before committing substantial money to the brand.

5. Are we actually going to use this consistently?

If the slogan is intended to become an enduring part of your brand identity, protecting it deserves more consideration than a temporary advertising campaign.

Build something worth protecting

There is a broader branding lesson in all of this.

Businesses often approach trade mark protection after the branding process:

“We've chosen the name and tagline. Can we register them?”

A better approach is to consider protectability during brand development.

A descriptive tagline might immediately explain what you do, but a more distinctive phrase may give you something much more valuable over time: an expression customers recognise specifically as yours.

The strongest intellectual property strategies don't simply protect the brand you've already created.

They help you create a brand that is capable of being protected in the first place.

If you're developing a new brand, slogan or tagline — or you're not sure what intellectual property your business actually owns — you can also complete my free IP Risk and Ownership Audit at www.elisesteegstra.com/ip-audit.

It is designed to help identify some of the IP assets and ownership issues that are easy to overlook while you're busy building the business.

Disclaimer: This article is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this article.