“You cannot steal somebody’s intellectual property. Law and justice protect”.-Bikram Choudhury
Advertising is one important strategy or tool in promoting a business. It is one method business owners employ to increase awareness of their business to intending customers, to gain traction, and in turn, attract patronage and boost up sales. The Cambridge English Dictionary defines advertising as the activity of making products or services known about and persuading people to buy them. WJ Stanton, marketing expert and author of the bestseller, Fundamentals of Marketing’, describes advertising as consisting of all of the activities involved in presenting to a group, a non-personal, oral or visual, openly sponsored message regarding a product or service. And this message called the advertisement, is disseminated through one or more media and is paid for by the identified sponsor. The American Marketing Association( AMA), defines advertising as any paid form of non-personal presentation and promotion of ideas, goods or services by an identified sponsor.
Advertising being a goal-driven and target-oriented business promotion strategy employs the use of creative ways or mediums as we see in TV commercials, radio jingles, newsletters, geared towards gaining customer attention or pull traction and this brings up the question, how can these creative means be employed during the advertisement campaign be effectively protected. In other words, Can intellectual Property be found in them? If yes, how can they be afforded protection?
Advertising depends on creativity to a great extent. Major technological breakthroughs and the Internet have facilitated the spread of new marketing techniques. Advertising is a powerful medium of influence, but as such carries the potential for misuse and abuse. This is why in many countries advertising practices are heavily regulated. And a good means of regulating the activity of advertising ensuring that every player gets and controls want belongs to them in form of rights, is via IP protection
In this article, we will examine what rights are covered and the nature of protection players in the advertising industry can enjoy. This piece shall bring to light the various Intellectual Property right contained in the different modes of advertising you come across. What rights can you find in that TV commercial, that radio jingle, that podcast, newsletter, magazine and so on.? As well as suggest ways to ensure effective protection in the advertising sphere. So grab a snack and enjoy this read.
Nature of the Advertising Industry:
To meet up sales targets or market penetration, or in the launch of a new product, an advanced feature in your product or you intend to make the world know about your service, you will have to consider advertising. This tool is regarded as one of the sub-features of the 4Ps of Marketing, i.e Promotion. Advertisement is the most widely used method for the promotion of products and services. It is used by all types of organizations including government and non-government organizations. Advertising is a good way to communicate information related to offerings by organizations. With the popularity of mass media like satellite television, cable network, the internet, print media etc. the scope and importance of advertising are increasing day by day. Companies are having a huge budget for advertising.
Although advertising seems like a must do activity, some brands do not fancy the idea of advertising. Brands like Tesla, can be viewed as a company that throws little attention on advertising. Elon Musk, Founder/CEO of Tesla tweeted, Tesla does not advertise or pay for endorsements. Instead, we use the money to make the product great. Whether Tesla has been successful on this path, will depend on their sales margin. Nothwithstanding, advertising has proven to be so much of a great instrument in making a brand scale up, boost patronage, which in turn converts to sales. Here is the yardstick, how many brands have you patronised, i.e, purchased their products or subscribed to their service, that did not engage in advertising or promotion? Did you trust those brands due to some kind of publicity about the product and service it offers? Put it this way, would you go for a product that nothing at all is said about it, good or bad or would you rather opt for that product that is publicised all over the media space?. Which of them stands the better chance to attract your money? You be the judge of that.
Advertising comes in so many forms and types and it is with the objective of informing and influencing potential customers to patronise a product or service. And in some cases, to sway favourably to an idea.
As already stated, in advertising, creative means are used to convey the messages. Creative means such as creative designs, like the Dominos’ Reverse Graffiti or MC Donald’s Clever seed Bomb ad, AXE’S green emergency exit sign ads and a host of creative billboards and posters we can find around our streets. Not just billboards, you have jingles, TV and radio communications, email campaigns, banners, pop-ups, billboards and rich media advertisements You can find dance displays, musical performances and other dramatic presentations, all employed in the advertisement. It is stated, though a rebuttable presumption, that the creativeness of an advertisement contributes 70% in gaining customer attention or in influencing them to tilt towards your product or service. And the quality of the product, its potency, contributes 30% or less to customers having a look at your product. Simply, what thisat assertion states is that customers don’t just buy your product because of what your product is, but because of what is said about it and how you say it. We all have one TV Commercial or radio jingle that we love so much and rings a bell in our heads to date, due to the creativity of the advert. And we find ourselves purchasing that brand or sponsors product, with little consideration whether it is the best or retains its quality or whether it still works. That is the goal of advertising. To inform, but to a greater extent, influence customers and their purchase decisions. Little wonder you end up making exclamations like; Oh! this company lied about their product. What a waste of money! or Are you sure I got the right product, let me check again or in the pidgin parlance, So this product na scam when the purchase goes bad and you get a defective product. If you ever feel guilty for selling your minds to a radio jingle or TV advert, then welcome home, we can grieve together.
However, the concern of IP in all of these is in the creative means used. I mean not the extent to which the advert is driving sales, but the creative means itself. It looks at the medium, businesses or brands employ in an advertisement. To regiment this broad-spectrum, Intellectual Property or its associated protection, looks at, where did Business X or Brand Y source its means of advertising from? what is the composition of the means? Do they exclusively own the means or medium? Is it original? If otherwise, were credits given to real owners of the work? How did the entities apply the creative means? Did they obtain a license, if required, to use them? Were they permitted to use them? If royalties or some form of compensation that needs to be paid, were they paid?. An extension of the numerous considerations, will include, Did Brand Y use another brands slogan, symbols or trademark? .Did Brand Y play the game right? Were they unfairly competitive? The ultimate question is not whether a brand is doing advertising right, but simply, Is that brand advertising its product or service, in a way that no one’s/entity intellectual property rights is infringed upon, irrespective of the means that the brand employs in advertising its product? That is the concern of IP.
The Need for IP protection:
The need for IP protection in advertising, spurns from the fact that marketing campaigns consist of different assets. Assets which include creative assets like literary works, music, dance, visual arts etc. As well as promotion collaterals, such as a branded newsletter, unique web designs and the brands’ commercial identity which include brand names, logos, slogans, product names and distinctive domain names, if it is a web advertisement. These are intangible and commercial assets, which should be given suffficient protection under various IP frameworks.
Also, like any industry other creative Industry, you will find imitators rather referred to as Copy cats’ and illicit copying can cause a great consequence to your IP assets. Associated with unlawful imitation, is the unlawful use of creative ads, contents, products, marketing campaigns, unethically exploited by unfair competitors or rivals. A lack of caution can result in a company facing loss in its IP Rights or the liability of infringing upon the IP Rights on of another person.
Furthermore, a host of digital marketing and advertising mediums, has created opportunities for brands and organisations to harness their online presence and visibility. And due to the emergence of these novel mediums that Intellectual Property (IP) plays a crucial role, due to which, the brand owners need to protect their exclusive Intellectual Property Rights (IPRs) at all times.
According to the World Intellectual Property Organizations’ booklet on the management of Intellectual property in advertising, it states that, tThe importance of proper management of IP in the advertising industry becomes more obvious when the place and influence of the advertising industry in the global economy is are clearly defined. The global economy refers to an environment in which businesses are able tocan market products and services worldwide, and can be divided into several sectors or industries. In a very broad sense, the advertising industry is considered part of the creative sector(sometimes referred to as the economy of culture). Today, the cultural sector comprises the traditional cultural industry as well as the creative sector. In academic and professional literature and in practice, the expressions cultural industries and creative industries are sometimes used interchangeably. The World Bank estimates that, globally, the creative sector (or creative industries) account for more than seven per cent of world gross domestic product (GDP).
Finally, the commercial value of the creative assets involved in a marketing campaign or in advertisement, is another reason for an efficient IP protection. Roughly, Intellectual property can be defined as the intangible assets of a business, brand or creative, that has some commercial value, innate or when exploited. The commercial value of the intellectual property makes it an asset that ought to be protected. Thus, in advertising, you find these assets and if not protected can lead to depreciation in the commercial value of such assets.
There is a great need for effective IP protection, not just in the advertising industry, but in every creative and innovative industry. I will state this clearly, maybe you take this home; Invest Billions in a business without effective protection of your business IP, then watch your business losing billions getting your assets back. And this time, there is either a a depreciation or loss in value of your assets.
Nature of IP Protection in Advertising:.
•What rights are Involved?
The various Intellectual Property Rights involved in advertisement include:
Copyrights: One of the major IP rights involved in an advertisement campaign, Is copyright. Copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. This rights guarantees that the original owner of the work can exploit creative work or piece without any infringement or unlawful exploitation That owner is entitled to economic proceeds from his work including a right to attribution which falls under moral rights under copyright. Copyright over the years has expanded its scope, with new regulations springing up, extending the scope of this IPR. Now you have dance steps covered under copyrights, you have copyrights extending to the digital sphere, and into the advertising sphere. Having rich media advertisement, coming under the scope of copyright protection. Copyright in an advertisement, covers the original creative and fixed works, employed in an advertisement or marketing campaign.
• Trademarks: Trademarks or service marks, refer to distinctive quality in a product that differentiates a product from another, providing a unique identification. A literary, figurative, or visual sign which serves as an identifying factor for your brand. Trademarks could be logos, slogans, phrases, designs, images, shapes and so on, which stands to make every buyer easily identify a product/ brand from another. Even if both brands offer the same service. The Apple sign used by Apple.Inc, is a trademark in with which you can identify each Apple product with. Brand names like Apple, McDonald’s, and Dolce & Gabbana. Product names like iPod and Big Mac. Company logos like the golden arches at McDonald’s and NBC’s peacock logo. Slogans like Capital One’s “What’s in your wallet?” and McDonald’s “I’m lovin’ it”Words in a stylized font like “Coca-Cola” and “EbayeBay”. You also have composite marks also known as combinations, which consist of a name and symbol. Like that of Amazon, Samsung, IBM and Starbucks Coffee emblem. Trademark protection in an advertisement, will include the protection of product names and designs, peculiar symbols, slogans and phrases etc in advertisement. Ensuring that a competitor does not copy or immitate similar marks of another brand, while advertising its product.
•Industrial Designs: Similar to trademarks, industrial designs, refer to the appearance of a product. However, it is not the distinctive feature in the appearance of the product, but the appearance of a product, resulting from features such as the lines or colours of the product or its ornamentation. An industrial design may consist of 3-dimensional features such as the shape of a product (a Coca-Cola bottle) or two-dimensional features such as patterns (a design on a clothing), lines or colour of a product as well as graphic user interfaces. Thus, the creatively designed aspect of a marketable product can and should be protected from imitation which can be misleading to customers.
• Patents/Utility Model: Patents are rights given to inventions which that are industrially applicable and original. In a marketing campaign, patents are also involved, if the marketed product enjoys patent protection and is not in the public domain, having met the criteria of industrial applicability and originality . Thus, an imitation, copy of an invention and marketing the counterfeit, goes a long way in infringing on the patent of the original inventor, if the inventilor has been given a patent.
- Unfair Competition/Trade practices: This covers any business practice or act that is deceptive, fraudulent, or causes injury to a competitor and in extension to a consumer. Article10 bis(2) of the Paris Convention, defines an act of unfair competition, as anyy act of competition, contrary to honest practices in industrial and commercial matters. Article 10 bis(3) of the same Convention specifies the acts that constitutes unfair competition. They are as follows: All acts of such a nature as to create confusion, by any means, with the establishment, the goods, or the industrial or commercial activities of a competitor. False allegations in the course of trade, of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities of a competitor. Indicators or allegations, the use of which in the course of trade, is liable to mislead the public, as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.
Among the various acts of unfair competition includes unfair advertising which comprises, comparative advertising, misleading, discrediting competitors and free riding. Unfair advertising is one which is common and includes misrepresenting a product, service or its price, or employing unfair sales strategies, like the ‘bait and switch strategy’; a practice of advertising one item at a low price, with the intent of actually selling other items. Unfair ads can be categorized as those with incorrect pricing, fake endorsements, false statements, or exaggerated performance descriptions. Deceptive guarantees are also considered a form of unfair advertising.
Unfair competition and trade practices are regulated by various antitrust laws and regulations and unfair competition laws. The latter, focuses on ensuring fairness in competition by mandating competitors to play by the same rules and laid down guidelines. Unfair Competition laws, also helps to ensure transparency and correctness in advertisements.
How are these rights protected?
These rights can be protected by various laws and regulatory frameworks such as conventions, laws, regulations and international treaties. For instance:
• Section 1(1)a-f of the Copyright Act(Cap 68, LFN 1990) listed works which that are eligible for copyright, and these this list of works, Include; literary, artistic, musical works, broadcasts. And these works, can be found in advertisements or marketing campaigns.
Also, section 5(1)(a) lists out the rights to be exercised by the owner of the a copyright. This includes the right to distribute the work to the public for commercial purposes.(see s 5(1)a)iv).
Furthermore, s15(1) provides for a medium of redress for a person/brand whose copyright has been infringed. Section 15(1) reads as follows:
‘Subject to this Act, infringement of copyright shall be actionable at the suit of the owner, assignee or an exclusive licensee of the copyright, as the case may be, in the Federal High Court exercising jurisdiction in the place where the infringement occurred; and in any action for such an infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights'
In respect to Industrial designs, they can be protected under copyright law, depending on the designs or in the alternative, afforded protection under the Patent and Designs Act. Industrial design protection is territorial and so can be protected by the distinctive national laws of countries.
Patents can be protected under the Patents and Designs Act, as well as the Patent Cooperation Treaty and other associated treaties and agreements such as the TRIPS agreement.
Unfair trade practices, protection can be under various national anti trust and unfair competition laws. Also, provisions regulating unfair competitive practices can also be found under the Federal Competition and Consumer Protection Act (FCCPA) 2018(Act no.1 of 2019.) which established the Federal Competition and Consumer Protection Council (FCCPC). A regulatory body which that oversees unfair competitive practices.
These among other regulations and frameworks, provide protection for the various Intellectual Property Rights, which can be found or involved in a marketing campaign.
Key Moves in Enhancing Effective IP Protection in the Advertising Industry:
• It is trite to point out that, there needs to be proper implementation of the provisions of the regulatory frameworks that provide protection fortect the IP assets in advertisements. I would suggest that, due to the complexities of the advertising Industry, there should be an enactment of a law or establishment of a framework in respect to IP protection, exclusive to the advertising industry. This exclusive protection will cover the various forms of advertisement. Including digital and rich media advertisements and will spell out the extent of protection.
Old IP laws need to be revamped to match global best practices. For instance instance, IP laws are obsolete and in need to be of being revamped. For sufficient protection to be possible, there should be rejigging of the domestic IP laws we have in Nigeria to suit global best practices and to fit into the changes. Especially with the advancement in technology and emergence of Artificial Intelligence(AI), which has permeated every sector.
The issue of Intellectual Property Protection should be given much attention by advertising regulators in Nigeria. Sub regulations can be established to ensure that members and players in the advertising sphere, adhere to IP practices in playing the game.
Finally, if there is anything that could improve effective IP protection, is the increased awareness on the concept of Intellectual Property. The rights associated with it and its associated protection. Much awareness should be created about Intellectual Property Rights (IPRs) by regulatory bodies, the Copyrights Commission, legal/compliance departments of advertising agencies etc. This ensures that the knowledge of IP is spread across board. This will assist immensely in enhancing holistic and efficient IP protection not just in the advertising sphere, but in every creative and innovative industry.
ABOUT THE WRITER
ANTHONY ONWUKWE AcArb is 300 level Law Student of the University of Nigeria and an Associate of the Nigerian Chattered Institute of Arbitrators. He is an IP ethusiast and has authored several articles on Intellectual Property Law. His article,‘Related Rights Protection in the Broadcasting Industry, published via Nigerian lawyers is one of his leading articles, ranking No 1. He also has interest in Entertainment law, Technology law, ADR and Blockchain. He is also the Technical Advicer to the Regional Director, Federation of African Law Students. Anthony is also a copywriter and a product reviewer, where he reviews [email protected] He can be reached via: 09068515296/[email protected]
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