copyright trademark advertisements
Is a modified version of a trademarked slogan considered infringement?
<p>Since it's not the exact trademarked slogan, it seems the answer would be straightforward - but I've learned that trademark/copyright law is anything but.</p>

<p>If the phrase, "Float like a butterfly, sting like a tuna melt" were used to advertise a product (not actually going to - just an example), would the owners of Ali's intellectual property have grounds to take action?</p>

<p>Evidently, the original slogan was used verbatim in an advertisement for an e-reader where the boxer's name was also used.  <a href="https://www.bloomberg.com/news/articles/2011-07-13/muhammad-ali-enterprises-sues-kobo-over-butterfly-slogan-in-newspaper-ad" rel="nofollow noreferrer">This resulted in action</a> against the e-reader manufacturer for, among other things, use of the slogan.</p>

<p>Would such advertisements be at risk if they were modified as shown above?  And, of course, were devoid of mentioning/claiming any association with the owner of the original slogan.</p>

<p>I found <a href="https://writing.stackexchange.com/questions/21848/borrowing-or-stealing-phrases/21864#21864">another answer</a> somewhat similar to this context but it pertained to writing.  Any links to supporting material would be greatly appreciated.  Unfortunately my Google skills only go so far in this domain.</p>

<p>It's indeed not straightforwards. Just taking the form you have, you see a pattern "{Verb} like a {noun}, {verb} like a {noun}". Are all such slogans trademarked? </p>

<p>I would wager a hotel could get away with something like "Check in like a race car driver, sleep like a king". Not saying it's a good slogan, but it's different enough from Ali's statement that you would not confuse the two. </p>

<p>Clearly there is a grey area. Is there a similarity in the words? That can be textual (puns), auditory (rhymes), categorical (same class of verb or noun), etcetera. With such a variety of possibilities, there is no definite answer. It's clear that a single slogan can't trademark the whole English language, so there is a limit, but the boundary is fuzzy.</p>

<p>The main issues are:</p>

<ul>
<li><p>Are the two trademarks confusingly similar? (If yes, potential infringement, if no, no infringement). This is often a factual issue to be determined with market research.</p></li>
<li><p>Was the potentially infringed trademark used to sell products in the same economic market as the potentially infringing trademark? A trademark used to sell cars or clothes may not be protected in the markets of selling hotel rooms or computers.</p></li>
<li><p>Did the potentially infringed trademark have a geographic scope that includes some of the places that a potentially infringing trademark will be used? A mark used only in Arkansas probably isn't protected in Alberta.</p></li>
<li><p>Has the potentially infringed trademark lapsed from expiration of a registration and abandonment? If the registration has not been timely renewed and it is no longer being used to sell goods or services, it is available to be appropriated.</p></li>
<li><p>Has the potentially infringed trademark been so widely infringed that it is now a generic term (e.g. Xerox)?</p></li>
<li><p>Did the potentially infringed trademark ever acquire "secondary meaning" (i.e. an association in the public consciousness with a particular good or service from a particular vendor)? If it was too generic (e.g. "liquor" for a liquor store), or never acquired secondary meaning, it may never have been enforceable.</p></li>
<li><p>Was the potentially infringed trademark ever associated with a particular good or service? If not, it is a quote, and copyright considerations might apply (although copyright protection for short quotes is very weak), but not trademark law.</p></li>
</ul>
