Having previously looked at Sweaty Betty’s use of a “Wear The Damn Shorts” slogan, the activewear brand is now in the news again for a further, similar dispute.
Some ifs, certainly buts – the dispute between Sweaty Betty and Nixi Body
Nixi Body, a period underwear brand founded in 2019, has claimed the use of the phrases “Keeping you moving through menstruation, motherhood and menopause” and “No leaks. No ifs. Just butts” in its marketing for, quote,“years”. Nixi did try to register the first of those in 2024, but the application never went through to registration.
Nixi noticed Sweaty Betty’s use of the “keeping you moving…” slogan this year and took no action as the founder’s view was that it might have been coincidental. Later this year, Sweaty Betty’s slogan “no ifs. Just butt” caught Nixi’s attention again and its founder spoke out after seeing news reporting relating to Georgina Cox’s dispute with the same company.
Sweaty Betty’s view is that empowering women means that this “sometimes… means the language used by different brands aligns”. That seems fair in relation to the “keeping you moving…” slogan: it would be difficult to register as a trade mark, but to push it through there is always the option of filing evidence of “acquired distinctiveness” due to market recognition. However, the general principle on this is that the more descriptive and less distinctive a slogan is, the harder it is to show market recognition. And, of course, not all companies have equal time and money when it comes to putting together evidence of acquired distinctiveness.
The position might not be the same in relation to the “no ifs. Just butt” slogan: it doesn’t look as if either Nixi or Sweaty Betty tried to register it, but an unrelated owner has registered a NO IFS JUST BUTTS slogan, covering clothing, in the UK. Again, this seems about right: not all slogans are equal. The NO IFS JUST BUTTS trade mark does have more to it than “keeping you moving…” in terms of a play on words and that helps the UKIPO to accept it as distinctive.
Overlapping inspiration – who owns descriptive slogans?
The presence of similar slogans on the marketplace – and the older NO IFS JUST BUTTS registration – does seem to indicate that reasonable people might innocently come up with similar language to use as a brand identifier.
So, who can claim ownership of slogans like the “keeping you moving…”? First to the trade mark register, or first to market? Or – can nobody “own” descriptive slogans? The law says that descriptive marks can’t be registered unless they already have market recognition and that seems reasonable. Of course, registered trade marks aren’t the only way to enforce: if a slogan has built-up goodwill, its owner can claim a passing-off right. Either of those options might lead to further tangles: after all, there are defences to honest descriptive uses of language.
But the legal position isn’t the only thing to consider: the “moral” position and a company’s ethical aims, do matter. If a company prides itself on its ethical position, it is not great PR to look as if it is appropriating another’s work. One news story leads to more, as this one did. It’s interesting that Sweaty Betty, although maintaining its right to use “keeping you moving…”, doesn’t appear to have commented on its use of NO IFS. JUST BUTT.
Conclusions – moral and legal implications
So what can brand owners do to ensure they don’t tread on others’ toes? Trade mark register searches, obviously and a bit of common-law searching is also sensible. Google is your friend, after all. But even if you do this, you still might find that other people in the same area have been doing something similar.
In Sweaty Betty’s case, it has now adjusted both of its slogans. Did it have to? Legally, maybe not, in relation to the “keep you moving…” slogan. But public attention can sometimes make it sensible to change a slogan even if you aren’t forced to it.
