The document discusses various intellectual property issues related to advertising. It covers different types of intellectual property rights that may be involved in advertising such as copyright, trademarks, geographical indications, patents, designs, publicity rights etc. It also discusses issues around usage of others' materials, likeness and prevention of trademark dilution in advertising. Comparative advertising guidelines and importance of non-disclosure agreements are also summarized.

1. CHENNAI
3rd 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. INTRODUCTION
CHENNAI
3rd 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. Intellectual Property Rights
Involved in Advertising
CHENNAI
3rd 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. Cntd..
CHENNAI
3rd 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. Cntd..
CHENNAI
3rd 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. Protection of relevant IP rights
CHENNAI
3rd 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. Usage of others’ materials in
Advertising
CHENNAI
3rd Floor, ‘Creative Enclave’,
• Current technology makes it fairly easy to use material
148-150, 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. Usage of others’ Likeness in
Advertising
CHENNAI
3rd Floor, ‘Creative Enclave’,
• The presence of a celebrity seems to be an effective tool
148-150, 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. DOCUMENTATION
CHENNAI
3rd Floor, ‘Creative Enclave’,
• Documentation of advertisements is extremely beneficial
148-150, 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. Prevention of trademark dilution
CHENNAI
3rd Floor, ‘Creative Enclave’,
• The dilution of trademarks can occur inadvertently
148-150, 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. Comparative Advertising
CHENNAI
3rd Floor, ‘Creative Enclave’,
• Comparative advertising can mislead consumers and can
148-150, 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. Cntd..
CHENNAI
3rd 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. Non-Disclosure Agreement
CHENNAI
3rd 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. Other Legal Issues
CHENNAI
3rd Floor, ‘Creative Enclave’,
• General issues that needs to be considered while developing
148-150, 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. Cntd..
CHENNAI
3rd 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. Cntd..
CHENNAI
3rd Floor, ‘Creative Enclave’,
• Distance selling
148-150, 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. CONCLUSION
CHENNAI
3rd 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