Advertising and marketing are big business. An effective advertising campaign can make the difference for a product between success and failure, so, it’s no surprise that there are a variety of intellectual property (IP) issues involved in this field. The main ones are:

  • copyright;
  • trade marks;
  • design rights;
  • passing off; and
  • protection of confidential information

Copyright law gives basic protection to advertising and marketing work from unauthorised copying. It applies to literary, dramatic, musical or artistic works; sound recordings; films; broadcast and typographical arrangements. Protection arises automatically and requires no registration.

The creator of the advertising or marketing work will automatically own the copyright, unless it is produced during the course of employment or commissioned. Ownership, in these circumstances, must be dealt with specifically in a contract of employment or commission.

Although copyright is protected automatically, it is also possible to register your advertisement and marketing work or any other copyright-protected material such as your business website with the UK Copyright Service.

It is recommended that copyright holders use copyright notices on their work to alert the public to that protection; for example, the symbol © or the word ‘copyright’.

Trade marks
You need to be aware of how to protect the brand value in your goods when starting a marketing campaign. A registered trade mark protects companies from unauthorised third parties using identical or confusingly similar trade marks and so, damaging any marketing strategy.

Other rights are afforded by unregistered trade marks; however, it is advisable to register your trade marks where possible and use them consistently and properly in order to enhance the distinctiveness and value of the trade mark over time. Once registered, it is also advised to mark trade marks with the trade mark notice ®, TMor equivalent symbols.

Designs can be protected in two main ways: though design rights or registered designs. Design rights protect the appearance of a purely functional product; registered designs protect two- or three-dimensional designs with individual character.

Registered designs are likely to be the most relevant to advertising and marketing campaigns. To be eligible for registration, the design must be ‘new’, that is, different from any existing design. Once registered, protection lasts for 25 years. You can register your design at both national and European level.

The law in England and Wales also provides a possible remedy known as ‘passing off’. This applies where one business has used the goodwill attached to another business or brand name to its benefit by causing confusion between similar products or services. A recent example of this was of the consumer confusion caused by marketing vodkat in a similar way to vodka. The producers of vodkat were found to have breached passing-off rules.

Passing-off rights may overlap with claims for breach of trade mark, copyright or design right, but does not depend on the existence of any of these.

Non-disclosure agreements
Finally, where business strategies, plans, concepts and ideas are discussed with others, it is important to protect confidential information in order to prevent use by competitors. The best way to avoid this is by agreeing a non-disclosure agreement with the parties involved pre-disclosure.

Getting the most out of your IP rights
In addition to the benefits of owning IP rights, companies should consider opportunities to exploit their IP assets by either selling or licensing them to a third party.

A licence is essentially a legal permission granted by the IP rights owner, allowing a third party to exploit the IP right on agreed contractual terms. When drafting a licence agreement it is essential to define how a party may use the right and for what purpose he may use it.

Licensing or selling your IP rights under a well negotiated agreement may be the best way to get the reward for your IP if you are not in a position to manufacture and sell the end-product to one or markets yourself.

Methods are available to protect your IP and to ensure that you obtain the benefit from it; however, it is also important to understand your various rights and to take the right actions at the right time to ensure that others don’t take advantage of your work.

Content supplied by College of Law students at the Moorgate Centre supervised by Tim Harris of Bird & Bird LLP

Image: Alex Burgess: