CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,         Mylapore,    Chennai - 600 004. Tel: +91 - 44 - 249...
INTRODUCTION         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,                                 • For ...
Intellectual Property Rights                                        Involved in Advertising         CHENNAI3rd Floor, ‘Cre...
Cntd..         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,         Mylapore,                           ...
Cntd..         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,        • Some forms of advertising technique...
Protection of relevant IP rights         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • While the...
Usage of others’ materials in                                             Advertising         CHENNAI3rd Floor, ‘Creative ...
Usage of others’ Likeness in                                             Advertising         CHENNAI3rd Floor, ‘Creative E...
DOCUMENTATION         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • Documentation of advertiseme...
Prevention of trademark dilution         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • The dilut...
Comparative Advertising         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • Comparative advert...
Cntd..         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,        • Hindustan Lever Limited v Colgate P...
Non-Disclosure Agreement         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,         Mylapore,         ...
Other Legal Issues         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • General issues that nee...
Cntd..         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,         Mylapore,               • Advertisin...
Cntd..         CHENNAI3rd Floor, ‘Creative Enclave’,                                 • Distance selling148-150, Luz Church...
CONCLUSION         CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road,        • Advertising today is not limite...
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Ip issues in advertising

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Ip issues in advertising

  1. 1. CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, INTELLECTUAL PROPERTY ISSUES Raheja Towers, 26-27, M G Road, Bangalore - 560 001. IN ADVERTISING Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 E. SHELLEY EMAIL info@altacit.com WEBSITE www.altacit.com
  2. 2. INTRODUCTION CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, • For most enterprises, especially small and medium-sized Mylapore, Chennai - 600 004. enterprises, advertising can be a costly affair. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, • On the one hand, customers are getting bombarded with 26-27, M G Road, Bangalore - 560 001. ever more information about new and allegedly superior Tel: +91 - 80 - 6546 2400 goods and services, while, on the other hand, cash- COIMBATORE BB1, Park Avenue, # 48, Race Course Road, starved enterprises need to be more and more creative to Coimbatore - 641018. Tel: +91 - 422 – 6552921 be cost-effective in advertising their wares. • To be effective, an advertisement must first get noticed, and then be remembered long enough to persuasively communicate the unique selling proposition of a product EMAIL or service, so as to make potential customers into actual info@altacit.com ones. WEBSITE www.altacit.com
  3. 3. Intellectual Property Rights Involved in Advertising CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, Mylapore, • Creative content, such as written material, photographs, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 art, graphics, the layout of an advertisement, music and BANGALORE Suite 920, Level 9, videos, may be protected by copyright; Raheja Towers, 26-27, M G Road, Bangalore - 560 001. • Advertising slogans and sounds may be protected, Tel: +91 - 80 - 6546 2400 under circumstances, by copyright and/or by trademark COIMBATORE BB1, Park Avenue, # 48, Race Course Road, law; Coimbatore - 641018. Tel: +91 - 422 – 6552921 • Business names, logos, product names, domain names and other signs used in advertising, may be protected as trademarks; • A website design is likely to be protected by copyright; EMAIL info@altacit.com WEBSITE www.altacit.com
  4. 4. Cntd.. CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, Mylapore, • Geographical indications may be protected by laws Chennai - 600 004. Tel: +91 - 44 - 2498 4821 against unfair competition, consumer protection laws, BANGALORE laws for the protection of certification marks or special Suite 920, Level 9, Raheja Towers, 26-27, M G Road, laws for the protection of geographical indications or Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 appellations of origin; COIMBATORE BB1, Park Avenue, • Computer-generated graphic symbols, screen displays, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 graphic user interfaces (GUIs) and even webpages may be protected by industrial design law; • Unfair advertising methods, including false advertising claims, false endorsement of products, deceptive EMAIL packaging, dishonest promotions or marketing, are info@altacit.com prohibited by unfair competition laws. WEBSITE www.altacit.com
  5. 5. Cntd.. CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, • Some forms of advertising techniques or means of Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 doing business may be protected by patents or utility BANGALORE models; Suite 920, Level 9, Raheja Towers, 26-27, M G Road, • Distinctive packaging, like the shape of a bottle or Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 container, may be protectable as a trademark, industrial COIMBATORE BB1, Park Avenue, design or, in some countries, as a trade dress; # 48, Race Course Road, Coimbatore - 641018. • A person’s identity, such as his or her name, photograph, Tel: +91 - 422 – 6552921 image, voice or signature, may be protected by publicity or privacy rights; • Databases, for example of consumer profiles, can be protected by copyright or by sui generis database laws; EMAIL info@altacit.com WEBSITE www.altacit.com
  6. 6. Protection of relevant IP rights CHENNAI3rd Floor, ‘Creative Enclave’, • While the advertising guidelines raise compliance issues,148-150, Luz Church Road, Mylapore, Chennai - 600 004. advertisements must also be looked at from the perspective Tel: +91 - 44 - 2498 4821 of value creation and brand equity. BANGALORE Suite 920, Level 9, Raheja Towers, • It is first important to ensure that the content and 26-27, M G Road, Bangalore - 560 001. confidential information used to create the advertisement Tel: +91 - 80 - 6546 2400 or involved in the creation process are duly protected. COIMBATORE BB1, Park Avenue, # 48, Race Course Road, • Such confidential information may be protected through a Coimbatore - 641018. Tel: +91 - 422 – 6552921 variety of tools, including: • non-disclosure agreements; due diligence; indemnity clauses; appropriate filings under relevant IP laws, including copyright and trademark filings; and general awareness of the confidential nature of any projects. EMAIL info@altacit.com WEBSITE www.altacit.com
  7. 7. Usage of others’ materials in Advertising CHENNAI3rd Floor, ‘Creative Enclave’, • Current technology makes it fairly easy to use material148-150, Luz Church Road, Mylapore, Chennai - 600 004. created by others Tel: +91 - 44 - 2498 4821 – Using technical tools and software owned by others BANGALORE Suite 920, Level 9, Raheja Towers, • a written license agreement. – Using copyrighted works owned by others 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE • legal obligation to respect the moral rights of the author BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. – Using photographs owned by others  Tel: +91 - 422 – 6552921 •  separate permission to use the subject matter depicted in the photograph In addition to the authorization of the copyright owner of the photograph –  Using material available in the public domain • advertisers often use material that is in the public domain. EMAIL There are numerous institutions (libraries, national archives, info@altacit.com collective management organizations) and online portals that WEBSITE www.altacit.com have databases of public domain works.
  8. 8. Usage of others’ Likeness in Advertising CHENNAI3rd Floor, ‘Creative Enclave’, • The presence of a celebrity seems to be an effective tool148-150, Luz Church Road, Mylapore, Chennai - 600 004. of quickly attracting consumer attention to a product or Tel: +91 - 44 - 2498 4821 service and creating high perceived value and credibility. BANGALORE Suite 920, Level 9, Raheja Towers, • In many countries, the name, face, image, voice and other 26-27, M G Road, Bangalore - 560 001. likenesses of an individual are protected by privacy and Tel: +91 - 80 - 6546 2400 publicity rights. COIMBATORE BB1, Park Avenue, # 48, Race Course Road, • The right of privacy gives a person the right to protect Coimbatore - 641018. Tel: +91 - 422 – 6552921 their image from certain uses by others. The right of publicity is the direct opposite of the right of privacy. • It recognizes that a person’s image has economic value that is presumed to be the result of the person’s own effort and it gives to each person the right to exploit their EMAIL info@altacit.com own image. WEBSITE www.altacit.com
  9. 9. DOCUMENTATION CHENNAI3rd Floor, ‘Creative Enclave’, • Documentation of advertisements is extremely beneficial148-150, Luz Church Road, Mylapore, Chennai - 600 004. as it can be used in India and abroad as evidence to Tel: +91 - 44 - 2498 4821 establish the brand’s: BANGALORE Suite 920, Level 9, – transborder reputation; Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 – goodwill; and COIMBATORE – well-known status. BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Some examples of such documentation are: Tel: +91 - 422 – 6552921 • the protection of the Yahoo! yodel as a sound mark; • the colour combination of red and white for Colgate; • the colour yellow for Pedigree; and EMAIL info@altacit.com • Disney characters such as Mickey Mouse and WEBSITE Donald Duck. www.altacit.com
  10. 10. Prevention of trademark dilution CHENNAI3rd Floor, ‘Creative Enclave’, • The dilution of trademarks can occur inadvertently148-150, Luz Church Road, Mylapore, Chennai - 600 004. through advertising. An advertisement which uses Tel: +91 - 44 - 2498 4821 trademarks to advertise products should make certain BANGALORE Suite 920, Level 9, that it does not dilute, reduce or blur the mark in any way. Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Such dilution may occur through: – tarnishment; Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, – degradation; Coimbatore - 641018. Tel: +91 - 422 – 6552921 – parasitism; or – freeloading Any unauthorised use by a competitor solely to benefit from the mark’s goodwill and reputation EMAIL results in the dilution of the mark. info@altacit.com WEBSITE www.altacit.com
  11. 11. Comparative Advertising CHENNAI3rd Floor, ‘Creative Enclave’, • Comparative advertising can mislead consumers and can148-150, Luz Church Road, Mylapore, Chennai - 600 004. unfairly discredit the identified competitors. This is why Tel: +91 - 44 - 2498 4821 many legislations place severe restrictions on comparative BANGALORE Suite 920, Level 9, advertising. Raheja Towers, 26-27, M G Road, Bangalore - 560 001. • Comparative advertising may be direct or indirect. Tel: +91 - 80 - 6546 2400 – In direct comparative advertising, the advertised product is described COIMBATORE BB1, Park Avenue, as superior to named competitors on specific features or benefits. # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 – In indirect comparative claims, competitors are not named, and the advertised brand is simply described as being superior on specific attributes or benefits. • Special caution must be taken in the following situations: – Derogatory or defamatory comparisons are not permitted. – Deceptive comparisons are likely to constitute infringement.  EMAIL info@altacit.com – Comparisons that are likely to cause confusion with the WEBSITE competitor’s products or services are not permitted.   www.altacit.com
  12. 12. Cntd.. CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, • Hindustan Lever Limited v Colgate Palmolive (I) Limited Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 (AIR 1998 SC 526) and Pepsi Co Inc v Hindustan Coca BANGALORE Cola Ltd (2003 (27)PTC 305 (Del)(DB)), Suite 920, Level 9, Raheja Towers, – Colgate and Hindustan Coca Cola Ltd were both held 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 liable for disparaging their competitors’ products. COIMBATORE BB1, Park Avenue, – In both advertisements the competitor’s product name # 48, Race Course Road, Coimbatore - 641018. could not be heard but could clearly be made out from Tel: +91 - 422 – 6552921 lip movement. Such a method of circumventing the law was held to fall clearly within the ambit of disparagement. – The courts further stated that any claims made in comparative advertisements must be backed by EMAIL info@altacit.com verifiable statistical data. WEBSITE www.altacit.com
  13. 13. Non-Disclosure Agreement CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, Mylapore, • A non-disclosure agreement (NDA), also known as Chennai - 600 004. Tel: +91 - 44 - 2498 4821 a confidentiality agreement (CA),  is a legal contract BANGALORE Suite 920, Level 9, through which the parties agree not to disclose Raheja Towers, 26-27, M G Road, information covered by the agreement. Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, • An NDA creates a confidential relationship between the Coimbatore - 641018. Tel: +91 - 422 – 6552921 parties to protect any type of confidential and proprietary information or trade secrets.  • It is imperative that non-disclosure agreements be signed between parties to ensure that confidential information EMAIL info@altacit.com revealed to the advertising agency is protected. WEBSITE www.altacit.com
  14. 14. Other Legal Issues CHENNAI3rd Floor, ‘Creative Enclave’, • General issues that needs to be considered while developing148-150, Luz Church Road, Mylapore, Chennai - 600 004. an advertising campaign include: Tel: +91 - 44 - 2498 4821 • Geographical indications BANGALORE Suite 920, Level 9, Raheja Towers, – false indications of origin or source if used are actionable, in 26-27, M G Road, Bangalore - 560 001. some countries, under the trademark law Tel: +91 - 80 - 6546 2400 COIMBATORE • Sensitive categories: BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. – Most countries have special controls or prohibitions on Tel: +91 - 422 – 6552921 advertising for specific types of products, such as medicines, tobacco. • Labeling –  in some countries the legislation requires labeling (and advertising) to be in the national language. Some countries EMAIL info@altacit.com have environmental laws, which affect product packaging WEBSITE requirements.   www.altacit.com
  15. 15. Cntd.. CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, Mylapore, • Advertising and children Chennai - 600 004. Tel: +91 - 44 - 2498 4821 – Most countries allow businesses to advertise to children, BANGALORE Suite 920, Level 9, provided a set of minimum criteria is observed.   Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 • TV advertising COIMBATORE BB1, Park Avenue, – Many countries have some form of specific legislation or # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 code of practice for TV advertising. Fore example, there may be broadcast time restrictions for particular products. • Marketing practices – some promotional methods, such as direct marketing, unsolicited e-mails, free gifts and discounts, may be EMAIL info@altacit.com forbidden or restricted. WEBSITE www.altacit.com
  16. 16. Cntd.. CHENNAI3rd Floor, ‘Creative Enclave’, • Distance selling148-150, Luz Church Road, Mylapore, Chennai - 600 004. – “Distance selling” includes all forms of contracts concluded Tel: +91 - 44 - 2498 4821 where both parties do not meet face to face. Many national BANGALORE Suite 920, Level 9, legislations give rights to consumers who buy goods and Raheja Towers, 26-27, M G Road, services at a distance. Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 • Sponsorship COIMBATORE BB1, Park Avenue, # 48, Race Course Road, –  a virtual advertising technique where the broadcaster can Coimbatore - 641018. Tel: +91 - 422 – 6552921 change an advertisement from one moment to the next or choose the advertisement shown on the screen depending on where the target audience is. This form of advertising is banned in some countries, whereas it is allowed in others. • Privacy  EMAIL – National Data Protection or Privacy laws may put limits and info@altacit.com obligations on the collection, use and disclosure of personal WEBSITE www.altacit.com information. 
  17. 17. CONCLUSION CHENNAI3rd Floor, ‘Creative Enclave’,148-150, Luz Church Road, • Advertising today is not limited to print and television; Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 the importance of protecting a brand and other BANGALORE intellectual property over the Internet is becoming Suite 920, Level 9, Raheja Towers, essential to prevent damage to goodwill and reputation. 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE • Today, it is impossible to be a successful advertiser, or run BB1, Park Avenue, # 48, Race Course Road, a successful advertising agency, without understanding Coimbatore - 641018. Tel: +91 - 422 – 6552921 the legal framework surrounding the business of advertising. • Hence exercising caution to protect the content of an advertisement and to ensure that it is in line with the EMAIL applicable laws is essential. info@altacit.com WEBSITE www.altacit.com
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