In the case of State of Victoria v Pacific Technologies (Australia) Pty Ltd (ACN 065 199 439) (No 2) [2009] FCA 737, Emmet J stated that even though a literary work may be expressed in print or writing, there must be some work involved in the production of a literary work "in the sense that it is necessary for the author to add something of substance in the form of the expressions of ideas" which will be assessed on each specific case.
His said that "whilst the required skill or labour necessary for the creation of a literary work in which copyright may subsist is not large, it must not be insubstantial".
His honour held that "short phrases, single sentences and the like are too insubstantial or too short to qualify as a literary work for the purposes of the Copyright Act", even if skill and labour were expended on their creation.
He cited a number of cases by Australian and English courts in which such decisions were held.
In light of the consistent reluctance of courts to recognise copyright in slogans, short phrases, sentences in advertisements and sentences of an instructive nature, trade mark protection is the only way to provide exclusive rights to the use of those words in connection with the goods and/or services traded under those words.