To protect or not to protect? The eligibility of commercially-used short verbal texts for copyright and trade mark protection

Abstract

This article is concerned with short verbal texts used in a commercial setting, in particular titles and slogans. It describes how protection of such texts against unauthorized third-party use has traditionally been problematic, both under the law of trademarks and the law of copyright (and sometimes simultaneously under both). It is argued that particular difficulty surrounds the fact that such texts can give rise to multiple meanings which are not easily accommodated within the legal reasoning associated with established categories of intellectual property protection. We show how in such circumstances it has been difficult for the courts to achieve the necessary balance between private and public interest, and we conclude that the courts would benefit from greater sensitivity to linguistic complications associated with short verbal texts, which may appear simple because they are short but which raise open-ended problems as regards their interpretation and significance.