Creativity and innovation have been made a subject of protection by various international treaties and national provisions. The reason behind providing such protection is to avoid counterfeiting, copying, and maintaining the integrity of the work by providing due credits to the creator and owner of the work. The protection of intellectual property provides an incentive to the authors, owners, or inventors to avoid infringement of their rights on a property created by them by dedicating immense time, effort, and money. It also encourages the creativity, intellect, and productivity of the public in general.
Intellectual property is an asset of any business and is also one of the major components of its balance sheet. Hence, it becomes important to put efforts to provide legal protection to the intellectual property rights in advertising.
Protect the Asset
With a high rise in technological advancements, marketing and branding activities have shifted to digital mediums. This has definitely helped in reaching the target audience faster and in a cheaper manner but has also exposed the creative works to a large amount of risk of abuse, infringement, counterfeit, and misuse.
Advertisements are a bundle of assets for businesses & individuals on which they can have a claim and exercise their exclusive rights, for which legal awareness is essential.
Various components of the advertisements like creative content; slogans, signs & sounds; GUIs, graphic symbols, software, screen displays & web pages; advertising strategies & techniques; packaging, labeling, logos, names & domain names; and personal & corporate identity, are given protection under the intellectual property laws as Trademarks, Copyrights, Industrial Designs and Patents.
Legal issues in Advertising Industries
Globally, the Marketing and Advertising industry has been subject to controversies and issues such as Comparative Advertising, Trademark Dilution, Surrogate Advertising, Hate Sites, Trademark Parody and Fraud & Misrepresentation. Most of them are debatable when it comes to the legality and extent.
Comparative Advertising is one of the practices adopted by brands when they target a competitor’s product, service or brand for their own promotion. It is one debatable issue in the IPR protection domain as there is only a thin line which separates a justified comparative advertising from its unfair version. From a marketing perspective, it is considered to be a positive practice as it promotes healthy competition. On the other hand, it is perceived as a negative thing due to its ability to hamper the reputation of the competitor’s brand, product, or services. The practice is only considered unfair or unhealthy if it leads to the disparagement of goods, services, or brand of a competitor.
Trademark Dilution occurs when an individual or a business makes an unauthorized use of an originally registered and famous trademark. The similarity of the trademark is such that it makes the consumer believe that the diluted version has some connection with the original trademark. Recently, an Indian auto-rickshaw manufacturer had started manufacturing auto-rickshaws with the trademark ‘DMW’ which was visually, phonetically, and deceptively similar to the trademark of the globally well-known brand ‘BMW’. In such cases, the judicial authorities pass a restraining order against the defendant on the grounds of trademark dilution.
Surrogate Advertising is indirectly promoting a product which has been banned, but with the same brand name for an associated or unassociated product. It is necessary for any business to be aware of its product and keep its marketing and advertising outside the ambit of Surrogate Advertising which can further lead to misrepresentation.
Digital marketing is highly dependent on keywords and metatags. These can be used in browsers, content, proxies, and search engines. These metatags and keywords may be used in an unauthorized manner by ‘Hate Sites’. Protection of keywords and metatags becomes important as these are used in websites created with mala fide intentions to damage the reputation of an existing brand. In this deceptive practice, trademark violation occurs when the same keywords, brand name, domain name, and metatags are used by the perpetrator in the website content or domain name with the intent to deceive the public viewing the website by portraying a negative image of the victim.
Trademark parody is one such unacceptable act where a personality or brand’s name is used to convey a negative image. The perpetrator can be sued for defamation by the person or owner of the trademark in such a case.
Brands incur high costs to associate themselves with celebrities to gain traction of the target audience. The charges are of the personality and publicity rights that these famous people possess. Such rights are hampered when unauthorized use happens resulting in Fraud and Misrepresentation.
Creativity, innovation, and originality are the base of Intellectual Property Law. Society is evolving following the technological advancements which has resulted in the widespread use of advertisements as a promotion tool. It has drastically occupied the digital space as well as eventually increasing the risk of abuse of intellectual property rights of the owners and authors. In such a scenario, it is important for every business and individual to be aware of their rights and reach out to relevant authorities for their protection. Religiously registering the work as Trademarks, Copyright, Patent, Industrial Design or any other type of intellectual property protection will avoid intellectual property issues in advertising to a large extent and will also give a right to take action against the wrongdoers.
Advertising has a great impact on brand equity and it becomes imperative to keep the content, designs, strategies, logos, signs, domain names, etc. under a safe umbrella and comply with the applicable laws to avoid legal and reputational risks. This is an intricate process that Clevertize seems to have mastered, keeping them as well as their clients on the right side of the tracks.
Clevertize is one of the Top Integrated Marketing Communication Agencies in India. It has worked with many national & international clients like eBay, Nando’s, David Lloyd UK, METRO Cash & Carry, Sobha Ltd., TATA Motors, Barbeque Nation to name a few.
Clevertize is an Award Winning Agency, known to marry marketing with technology.
Some of the services that Clevertize provides are:
Creative Services, Performance & Digital Media Marketing, Visual Identity & Branding, Campaign Management & Analysis, UI/UX & Website design, Video creation, Media planning & buying, Chatbot & more.
If Return on Investment is critical for you, talk to Clevertize!