“DRIIN DRIIN” and “DLIN DLON” make a slogan creative work protected by copyright
The title of this article summarizes the main argument of a recent decision issued on 5 September last by the IP Court of Bari in a trial between an advertising agency and its client.
The Court ruled – in accordance with the settled case-law – that slogans/ advertising claims can be considered intellectual works under Articles 1 and 2 of Law no. 633/1941 (Copyright Law), even though they are not expressly mentioned among the works subject to protection, to the extent that – as for any work – their creative character is demonstrated.
In the case at hand, the defendant had contested the existence of the creative character of the slogans, for which copyright protection had been claimed, since they were nothing more than mere variations of already existing advertising messages, for which no protection had been invoked.
The IP Court, in accordance with the case-law concerning the interpretation of “creative character” pursuant to Article 1 of Copyright Law, rejected the defendant’s argument because, while it was true that the relevant claims were based on previous (non-creative) advertising messages, the creative contribution of the advertising agency (consisting in the addition of onomatopoeic expressions such as “DRIIN DRIIN” and “DLIN DLON” and other puns or dialect expressions) was such as to meet the (even minimal) threshold of the “creative character”. Therefore, the advertising agency, according to the IP Court of Bari, had made those slogans different from other existing claims and had therefore created creative works to be protected under Copyright Law.
In the light of their protection as copyrighted work, the IP Court also found that the claims have been infringed by the defendant, which was condemned to compensate damages. To this end, the IP Court reiterated that with respect to copyright infringement loss of profit must be considered in re ipsa.