In November 2025, the new Common Practice CP17, entitled “The Distinctive Character of Slogans”, was published. It aims to identify a set of common criteria for assessing the distinctive character of slogans for the purposes of their registration as trademarks.
The work was carried out by the European Union Intellectual Property Office (EUIPO) and the intellectual property offices of the individual Member States, with the objective of creating guidance that enables the various offices to assess the issue of the distinctiveness of a slogan using a uniform, predictable, and consistent approach.
Legal Basis and Basic Definitions
Pursuant to Article 4(1)(b) of the Trademarks Directive and Article 7(1)(b) of the European Union Trademark Regulation, signs that are devoid of distinctive character may not be registered as trademarks or, if registered, may be declared invalid. To be considered validly registered, a trademark must be capable of distinguishing the goods or services of one undertaking from those of other undertakings.
The term “slogan”, although not specifically defined either by case law or by legislation, is usually understood as “a short, easily memorable expression, used in particular to advertise an idea or a product”. In this regard, the Court of Justice has clarified that a slogan may perform both the promotional function referred to above and the function inherent to a distinctive trademark, namely that of indicating the commercial origin of goods and services. To perform this latter function, the slogan must possess a certain degree of originality and stimulate a cognitive process in the consumer.
It should be noted, as a preliminary matter, that slogans are not subject to stricter criteria for examining distinctive character than other types of trademarks. All trademarks must, in fact, be assessed based on the same legal principles. Accordingly, the two fundamental elements to be considered when assessing the distinctive character of a trademark (and of a slogan, as in this case) are the goods/services claimed and the perception of the relevant public.
Factors for assessing the distinctiveness of a slogan
The document therefore sets out a series of (non-exhaustive) factors for assessing the distinctiveness of a slogan, specifying that the presence of one or more of these elements does not automatically mean that the slogan is distinctive. Consequently, in order to establish the distinctive character of a slogan, an overall assessment of the relevant factors in the specific case is required, allowing the conclusion that the slogan can perform the function of indicating the commercial origin of goods and services, while at the same time possibly conveying a promotional message.
The factors identified are as follows:
- Multiplicity of meanings: a slogan that conveys more than one meaning can engage the public by allowing different possible interpretations, creates a stronger link with the goods and services offered, and makes it easier to remember. This element contributes to conferring distinctive character on the sign, but does not, in itself, constitute a decisive factor.
- Wordplay: the use of wordplay and double meanings can make a slogan more memorable, as it requires a certain intellectual and mental effort to understand its meaning. For example, the word mark “Where dresses come true” (for clothing in Class 25 and tailoring services in Class 40) is a play on the familiar phrase “where dreams come true”.
- Elements of surprise or conceptual intrigue: introducing an element of surprise or an unexpected twist can capture the consumer’s attention, stimulate curiosity, and make the slogan more engaging.
- Originality and resonance: a slogan that displays a certain degree of originality and resonance is more likely to capture the attention of the relevant public. The word mark “Bottle the Chaos” (for energy drinks in Class 32) is a clear example of the presence of this factor. The concept of “bottling” chaos suggests the ability to capture and control something wild and unpredictable. The dynamic combination of these words makes the slogan original and impactful.
- Cognitive process and need for interpretation: a slogan that requires reflection or interpretation involves the public in a mental process, making it more memorable. However, it is specified that even a slogan that does not stimulate a cognitive process in the consumer’s mind may still possess distinctive character.
- Unusual syntactic structures and/or linguistic devices: the use of non-orthodox grammatical forms or of alliterations, metaphors, rhymes, and paradoxes can make a slogan more appealing and memorable. For example, the word mark “IT’s APP2You” (for downloadable software in Class 9, access to information on the Internet in Class 38, educational instruction in Class 41, and engineering services in Class 42) employs an unconventional syntactic structure of the phrase “it is up to you”. The replacement of the word “up” with “app” and the use of the number “2” as “to” confer distinctive character on the mark. However, the document specifies that the absence of grammatical elements such as definite articles, pronouns, conjunctions, or prepositions is not always sufficient to render a slogan distinctive, just as the deliberate inclusion of spelling errors is not sufficient, in particular where the different spelling of a term does not alter its pronunciation, since the conceptual content that the relevant public associates with the sign is not lost.
Tania Giampieri