When it chose ‘The way to fly’ for its new strapline, was BA aware that the leading German airline had been using ‘There’s no better way to fly’ for its own advertising? Would it have made any difference legally if they had? Does anybody care?
Topic: Brands
Who: Lufthansa and British Airways
Where: The UK
When: April 2004
What happened:
After dropping use of "The world's favourite airline" in 1999, BA recently started using the strap line "The way to fly" in various marketing and communication materials.
This did not go down well with Lufthansa, who had for some while been using the slogan "There's no better way to fly" in various marketing materials and on its website.
Lufthansa complained to BA, who in response said rather lamely that "The way to fly" was just one of several possibilities under consideration. However, if it is correct, as first reports indicate, that "The way to fly" will feature in an M&C Saatchi TV campaign from this month, this suggests that BA was looking at the slogan far more seriously than that.
There are no reports indicating that Lufthansa has taken its complaints further, but if it did and took BA to court, would it have any prospects?
There are three possible areas of legal complaint, so far as BA's use of the line in the UK is concerned. The rules may differ in Germany, for example, but at the moment we will focus on the UK. The issues are trade mark infringement, passing off and copyright infringement.
Trade mark infringement
A quick check of the UK and Community Trade Mark Registers shows no actual or pending registration of either "The way to fly" or "There's no better way to fly" in anybody's name, but this is hardly surprising. The more descriptive and laudatory of the relevant goods or services the proposed trade mark is, the more difficult it is going to be to register it. This is for the simple reason that the registration authorities will be reluctant to give any single brand owner a monopoly right in descriptive words that marketers would generally expect to have the freedom to use without being sued for infringement.
The difficulty of course is that most slogans, to be of any use whatsoever, have to have some reference to the goods or services they are being used for, and ideally should be saying something positive about the product. So straplines are difficult to register and without a trade mark registration, would Lufthansa have any other grounds for legal action in the UK?
Copyright infringement
If "There's no better way to fly" qualified as a "literary work" under the Copyright, Designs and Patents Act 1988, Lufthansa might have a shot at arguing that "The way to fly" was a copy of a substantial part of the Lufthansa line. The question, however, is whether something as short and, with all due respect to Lufthansa, relatively prosaic as "There's no better way to fly" could classify as a literary work.
The authorities on copyright in branding and advertising are few and far between, but the courts have historically been sniffy about according marketing-ese the status of "literary work." The normal test applied in cases like this is whether the wording in question "provides information" or "affords enjoyment" because of its creativity.
Our apologies to Lufthansa, but we fear "There's no better way to fly" would very likely fail on both counts.
Passing off
Would Lufthansa have a chance with this tort? To be in with a shout, they would have to establish firstly that they had used "There's no better way to fly" in the UK extensively enough to make it distinctive in the minds of the flying public of Lufthansa's services and theirs alone.
Risk of confusion?
If they got home on that point they would have to establish secondly that BA's use of "The way to fly" was so similar as to create a serious risk of confusion in the marketplace as to whether BA's advertising or its services were in some way linked to Lufthansa, perhaps as a result of one of the many tie-ups and partnerships that are occurring in the airline industry these days.
Damage risk?
If it got home on this point, then it would have to establish lastly that BA's use of the similar line was likely to lead to Lufthansa incurring serious damage/financial losses.
On point one, much would depend on just how long and how widely Lufthansa had been using their line for. One would normally expect material advertising expenditure and relatively wide circulation over a period of at least 6-12 months. On the second point, we believe Lufthansa would have difficulty, partly because the descriptive nature of both slogans might make it unlikely that consumers would draw links between the two and partly because the two phrases are inconsistent with each other.
On point three, could Lufthansa show damage/loss, for example by way of evidence of flyers booking their flight to Hamburg on BA rather than Lufthansa after seeing the BA slogan and imagining the two airlines were connected? The evidential burden here seems very high and all in all, we believe that as in most passing off cases, Lufthansa would have a real problem in establishing a case with any ease.
Why this matters:
Regardless of the legal weaknesses of Lufthansa's case, it is always embarrassing for brand owners to come up with new branding which turns out to be similar to those of their competitors. As in all cases like this, extensive background research, as well as legal clearance checks is always advisable, although, of course, we assume that BA conducted these checks before coming up with "The way to fly."
