How can I legally protect my business’ slogan or catchphrase?
An Austin taco-based franchise is in the midst of a legal battle over the phrase “damn good tacos.” Torchy’s Tacos claims that a Colorado restaurant called Dam Good Tacos has infringed on its trademarked slogan. Torchy’s registered its tagline “Damn Good Tacos” with the United States Patent and Trademark Office back in 2008, about two years after the Colorado taco shop opened for business. Torchy’s sent a cease and desist letter to Dam Good Tacos, which uses the same phrase, but with a slightly different spelling. The company refused to change its name and Torchy’s filed suit. As this trademark case winds its way through the legal system, Texas business owners should take note and consider whether they need to take action to protect their slogans.
Trademark Protection for Your Slogan, Catchphrase, or Other Taglines
While you likely took steps to trademark your business’ name before opening, you may not have realized that some businesses can also protect their slogans. Slogans or catchphrases often form an integral part of the identity of a business. Without legal protection, other businesses may be free to use your treasured tagline, which could harm your reputation or brand.
While not all slogans are protectable, catchphrases that are tied to an advertising campaign or used to sell products or services may be eligible to receive federal trademark protection. To qualify as a protectable trademark, taglines must be either: inherently distinctive or fanciful or have developed a secondary meaning, such that they immediately call a product or service to mind.
Secondary meaning can be difficult to establish. A business owner may be able to prove that their slogan has a secondary meaning if they can show five years of continuous use of the phrase in commerce or significant sales and advertising. The less creative a slogan is, the greater the secondary meaning the slogan will need to qualify for trademark protection through the the U.S. Patent and Trademark Office.
Once your slogan has received trademark protection, you will need to take steps to protect your mark. This could include taking legal action against any infringers. Contact our experienced Austin, Texas trademark and service mark attorneys at The Kumar Law Firm PLLC for assistance with registering and policing your mark.