Registering slogan marks has never been easy, as highlighted by Audi’s seven year legal battle to register its "VORSPRUNG DURCH TECHNIK'" (advancement through technology) trade mark. The difficulty in this route to registration has recently been reinforced by the Court of Justice of the European Union (the Court) following its refusal of Smart Technologies' trade mark application for the slogan “WIR MACHEN DAS BASONDERE EINFACH” (we make special (things) simple).

The Court acknowledged that whilst it is possible for a slogan mark to be registered, the criteria relating to the distinctiveness of the mark and the indication of commercial origin had to be complied with. Ultimately the Court held that Smart Technologies’ mark was not sufficiently distinctive, given that there was no indication of commercial origin perceived by the relevant public - a feat that may only conceivably be reached through extensive use, in a way that Audi's slogan mark or Kit Kat's "Have a break.." mark have achieved.

This decision does not make registering trade marks that are slogans any easier. The reality is, without extensive use, slogan marks will continue to face an uphill battle towards registration.