An example of the potential risks in using slogans to promote a brand has been encapsulated recently in a dispute between personal trainer Georgina Cox and the fitness brand Sweaty Betty around the providence of the phrase “wear the damn shorts”.
“Wear the damn shorts”
Ms Cox created the phrase in a range of body-positivity posts on social media in 2020. In 2023, when launching a marketing campaign built on similar phrasing, Sweaty Betty paid Ms Cox for her involvement in the campaign and did so again for the following year.
However, having not been included in the campaign’s third year, Ms Cox’s lawyer sent the company a cease and desist letter, asking that the phrase be dropped from Sweaty Betty’s marketing. Sweaty Betty has instead offered a final settlement, including a payment, provided Ms Cox agreed that the company could continue to use the phrase and that she would not make any further public statements about the company.
The phrase “wear the damn shorts” hasn’t been registered as a trade mark in the UK and so it’s an interesting question as to who controls it: it’s not the most distinctive of slogans relating to body positivity activities and exercise clothing. Nevertheless, Georgina Cox had been using it before Sweaty Betty did and arguably had a passing off claim against them.
However, for Sweaty Betty the major issue here is reputational: Sweaty Betty has stated that “none of us has exclusive legal rights to this phrase”. However, if either Georgina Cox or Sweaty Betty had tried to register the slogan as a trade mark, they may have had a fair chance of success and be in a different position at present.
Conclusions
The use of slogans as part of a wider marketing strategy can be essential impression of a brand or products amongst consumers. They can be protected by a trade mark registration and ideally this should be sought early to avoid messy situations such as the one encountered between Ms Cox and Sweaty Betty.
Where issues arise, without clear ownership of the intellectual property having been defined beforehand, things can become murkier. Brands should be aware of the potential reputational damage from making use of slogans that – while not registered as trade marks – have a history of use in the public domain. In particular, if an “ethical” brand is perceived as using someone else’s property, it can be damaging.
If you require any further assistance in relation to trade marks for your company or brand, reach out to your regular Boult representative.
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