Intellectual Property and Marketing: How Compliant Is Your Ad Campaign?

Brand owners of all sizes are increasingly realising the importance of applying intellectual property principles in their overall business strategy. A marketing campaign comprises numerous assets that can be directly considered as Intellectual Property. A few notable examples of marketing collateral that would be eligible for IP protection are aspects such as:

• Commercial Identity: This comprises brand names, visual indicators, such as logos, distinctive domain names, sub-categorised product names.

• Promotional Collateral: An originally produced newsletter, a custom-made advertisement, a branded landing page, or a unique web design.

• Creative Assets: Original artwork, photography, or literary works.

Now, navigating the possibility and the extent of protection of a particular asset within a marketing campaign and overall communication strategy will solely depend on a basic pillar of intellectual property law:

Does The Intellectual Property In Question Meet And Fulfill Requirements For Protection, As Per Its Jurisdiction?

In theory, the answer is probably yes. But delving into further detail on the types of IP will help business owners prioritise accordingly. As the importance of Intellectual Property gains traction amongst businesses, the type of IP protection that is required for an ongoing marketing campaign is often overlooked. Here is an overview of the varying types of Intellectual Property that may be involved in a full-fledged marketing or advertising campaign.

Trademarks

A literary, figurative, or visual sign which serves as an identifying factor for your brand is registrable as a trademark. When applied in the scenario of an ad or marketing campaign, it is common practice that brands introduce ‘sub-brands’, which would duly fall under the main brand name.

Expert Insight: An example of a sub-brand could be the Big Mac, which falls under the main brand of McDonald’s. Or even the entire range of medications offered or produced by Pfizer as a brand, where Lipitor would be considered as the sub-brand. Such are eligible for trademark registration, under the brands’ ‘flagship’ name.

Given the fact that they are indeed distinctive indicators of a brand, it directly signifies their eligibility for trademark registration. Taking this notion further, the question of advertising slogans arises. This is a slightly more complex concept, as due to their nature, slogans that have been put forth for trademark registration have had higher rejection rates, as opposed to actual brand names.

The grounds for rejection are usually due to the slogan’s lack of uniqueness. Therefore, it is highly advisable to seek out appropriate counsel when attempting to trademark your brands’ slogan. This is to ascertain that your slogan is not immediately rejected, causing you to lose large amounts of money in hefty registration fees.

Copyright

A highly relevant cornerstone of IP in marketing campaigns would be Copyrights. This is due to a copyright’s ability to grant its owner the exclusive right of usage on specific forms of original works. Such works could be in the form of newsletters, white papers, originally curated photographic assets, and originally scripted verbal dialogue.  

Copyright laws are also applicable to a brand’s original website design and custom-made landing pages. But depending on the jurisdiction, such works could also be applicable under industrial designs. As mentioned initially, the classification of the type of protection would solely rely on whether the work in question meets the set of standard registration requirements.

Contrary to other forms of intellectual property protection, copyright law is applied instinctively and is needless of actual initial registration. But don’t misinterpret this principle by deciding to absolutely forego the option of registering your copyright. As this will affect your ability to enforce your rights, should you detect prominent infringements of your intellectual property.

Industrial Design

Patents and their effect on the efficacy of a Marketing Campaign

Patents and utility models make up a large sector of the intellectual property field. But whether intellectual property protection may or may not apply to a marketing campaign relies heavily on these factors:

• Whether or not the marketed invention is industrially applicable,
• Whether or not the marketed invention is original, and that originality can be supported by documented developments.

Notwithstanding the above, it must be noted that acquiring protection for a marketable patent involves a set of stringent requirements. Therefore, it is highly unlikely that a patentable invention would play a significant role in the efficiency of a marketing campaign. 

Expert Insight: The sole conceivable patented invention that may play a role in the performance of marketing campaigns would be in the form of electronic software. However, this type of protection is not yet available in most major jurisdictions, as software codes could also be protected under copyright law, rather than patent law.

Marketing Methodology and Compliance: The unlikability for legal protection

True, intellectual property laws exist to protect all creations of the mind. Just as how a well-thought-of marketing strategy would seemingly qualify as one’s original creation.  It is crucial to understand that it is nearly impossible to safeguard your applied marketing approach under the name of intellectual property law.

Marketing methodology is usually based on long-standing commercial principles that have been likely coined and reused repeatedly by other brands. The psychology behind consumerism and what drives a person to invest or spend money on a product lies in advertising standards that have been globally tested and proven. IP laws are only applicable to the actual expression of such advertising standards, through the aforementioned mediums.

Expert Insight: A brand owner can take the necessary measures to protect all communication material within their promotional campaign, but it must be kept in mind that there is still an underlying risk of infringement. This is avoidable through thorough IP compliance strategies. Doing so will further avoid any loss of profit against potential litigation or any harm to the reputation of your brand.

IP Compliance Strategies

These are merely steps a brand owner can adopt to ensure that their marketing ethos does not pose a future threat to their commercial value. Here a few simple examples of best practices to ensure appropriate compliance:

• Official trademark searches: Doing your due diligence before using a certain brand name, logo, or slogan via an official trademark search will not only save you the unwanted hurdle of infringing upon an existing trademark, it will also clarify whether you are entitled to call the trademark in question as your own. Regardless of whether you wish to register it as an official mark or not.

• Anti-competitive behavior and ethical competitive practices:  Intense competition between rivaling brands is very common. But it is important for brand owners to draw the proverbial line between marketing practices to gain a competitive edge and practices that involve exaggerated and falsified information.  

• Keyword advertising: Thankfully, international trademark laws enable holders of registered marks to prohibit 3rd parties from unlawfully using a mark or sign that is identical or even similar to theirs. An initial look-up on the main terminologies used in your marketing efforts will further ensure that your promotional messaging has not gone in vain, on the occasion that the used terminology is indeed a part of someone else’s brand.

Expert Insight: With regards to general intellectual property rights, a notable and frequent inclination for others to unrightfully use well-established trademarks prior to obtaining appropriate consent. This is irrespective of the brand’s commercial activity and whether there is a relation between the ‘infringer’ and the ‘infringed’. Goodwill, in this situation, will not get you out of hot waters should you indeed by accident and unlawfully using an already registered intellectual property asset.

Concluding Observations

A precise and clear definition of the types of intellectual assets a singular marketing campaign holds has deemed to be extremely crucial. Not only does it further your venture’s security, but it will also give you valuable insight into whether your promotional efforts are truly original and have not been thought of by another brand.

Doing so will also allow you to set in place a scalable strategy that will aid in the prevention of potential legal disputes and conflicts. To sum up, clearly delineating the below queries would be a plausible starting point. Especially for up and coming brands who are trying to lawfully tap into a certain consumer market:

• What aspects of your brand require immediate protection based on the most commonly infringed upon intellectual assets?
• As an aspiring brand, what are the necessary steps you must take to ensure that you are not unlawfully using an existing intellectual asset?
• What is the extent of financial repercussions your brand is facing if you choose to overlook such crucial specificities?

The content of this article is intended to provide a general guide to the subject matter. For further insight on the application of an actionable intellectual property strategy within your marketing efforts, feel free to drop us a line on [email protected] to schedule your complimentary consultation with one of our highly proficient brand experts.