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Transcript
WIPO-NIFT “TRAINING THE TRAINERS” WORKSHOP ON INTELLECTUAL PROPERTY RIGHTS New Delhi, June 20 to 24, 2005 Intellectual Property and Advertising Lien Verbauwhede Consultant, SMEs Division World Intellectual Property Organization (WIPO) 2 1. INTRODUCTION THE GROWING ROLE OF ADVERTISING IN THE MARKET ECONOMY 3 Today: bussinesses beckon customers with all types of advertising tools – – – – – – – – – – – Business signs Pamphlets, door drops Brochures Billboards Radio & TV communications Telephone solicitations Commercial text messages Email advertisements Banners Pop-ups Rich media advertisements 4 Internet and digital technologies • Traditional role: support for good/service • Innovative digital advertising techniques in online environment: – Expand role of advertising (receipt from advertising often main source of income) – Potential problems because of ease and speed with which advertising can be assembled, reshaped and distributed worldwide 5 Challenge • Advertising has become race for unique, cutting-edge, enticing way of ... – passing on information to customers – facilitate and positively influence their buying decisions • Difficult to keep content true to facts – Human tendency to exaggerate benefits of product – Easy to cross thin line demarcating puffery from misleading, deceptive or false advertisement 6 This presentation IP issues in the process of advertising Protect your IPRs in your advertising Dangers in violating IPRs of others 7 2. HOW TO PROTECT YOUR IP RIGHTS IN ADVERTISING 8 (a) What types of IPRs are involved in advertising? – Creative content copyright – Slogans, sounds copyright/trademarks – Business names, logos, domain names trademarks – GIs unfair competition, consumer protection, certification marks, special laws on GIs – Graphic symbols, screen displays, graphic user interfaces, web pages industrial design/ copyright – Software (to create digital ads, e.g. computer generated imagery) trade secrets + copyright and/or patent 9 – Advertising techniques or means of doing business patent (not in India) – Website design copyright – Distinctive packaging trademark, industrial design, trade dress – Person’s identity publicity or privacy rights – Databases copyright/sui generis – Unfair advertising methods unfair competition laws, tort 10 (b) How to protect your creative advertising? Cfr. presentation on Website 11 (c) Do you own the rights in your advertisement? You pay freelance advertising designer to create advertising campaign for you on the occasion of fashion exhibition. Year later: you want to use some text and graphic illustrations in your catalogue... 12 3. DANGERS IN VIOLATING THE IPRs OF OTHERS WHILE CREATING OR USING ADVERTISING CONTENT 13 (a) Can you use material owned by others in your advertising? •Technocal tools and software •Copyright works •Photographs Cfr presentation Website •Freeware •Material in public domain 14 (b) Use of others’ likeness Tennis star Sania Mirza promoting Tata Indicom mobile phone Nicole Kidman is the new face of Chanel No 5 15 In many countries: name, face, image, voice, other likeness of individual →protected by privacy and publicity rights Right of privacy Person has right to protect image form certain uses by others Right of publicity -Person’s image has economic value -Presumed to be result of person’s own effort -Gives person right to exploit own image 16 • Fashion brewery sells calendar with unknown persons driving car with refreshing pint in their hands - without permission... 17 • Textile company sells catalogue with Sania Mirza wearing its cloths - without permission... (ficticious example) 18 (c) Can you use a competitor’s trademark in your advertising? Trademark is exclusive right (right to exclude others from using the mark) BUT: No monopoly on the word, phrase, shape or color as such Only commercial use of the trademark for the relevant classes of goods/services can be restricted Non-commercial use cannot be prevented, except if use affects distinctiveness of trademark 19 Therefore: Use of competitor’s trademark in advertising is not an infringement, so long as ... Use is in accordance with honest practices in industrial or commercial matters Use does not take unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark India: Section 29(5) and 30 (1) Trademark Act 20 How to use competitor’s trademark in advertising? 1. Do not alter competitor’s trademark, especially if it is a logo (size, color, spelling) trademark dilution and infringement 2. If it contains graphic elements (logo, label, design, 3D figure) → authorization → copyright 3. Be careful when using competitor’s trademark in metatags, linking, framing, domain names → trademark infringement, unfair competition 21 4. Key word triggering • Ficticious example: - • I search ‘NIFT’ → banner of other university on top of search results I click on banner → get directed to other university Search engine sells keyword to business trademark dilution and infringement 22 5. Primary meaning of your advertising should be to inform the consumer, not to discredit or unfairly attack competitors 6. Mark competitor’s trademark with trademark symbol 7. Avoid using competitor’s trademark in way that suggests competitor endorses or sponsors your advertising product • E.g. Prominently featuring logo of competitor 8. Do not take unfair advantage of reputation of competitor’s to promote your own business 23 (d) Comparative advertising – Coca-Cola tastes better than Pepsi – Cadillac Seville outperforms BMW 540 in slalom course = Direct (competitor named) – NIFT has the best postgraduate programmes for the textile, garment and allied industries – We manufacture the nicest sarees in India = Indirect (competitor not named) 24 Can you compare qualities of your products with those of competitors? Some countries: • Truthful comparisons are informational for competition • Beneficial to competition Some countries: • Forbidden for certain products Some countries: • Only allowed if specific requirements fulfilled Some countries: • Forbidden 25 Cable&Wireless PLC v British Telecommunications (UK, 1998) • Telephone company compares prices of its telephone service with those of competitor – Accurate and not intended to mislead the public 26 Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd. (India) • Advertisement on electronic media shows a bottle of ‘KIWI’ which does not drip as against another bottle described as ‘OTHERS’ which drips and is shown as ‘Brand X’. • Brand X looks similar to the plaintiff’s Cherry Blossom. There is a red blob on ‘Brand X’ which represents ‘CHERRY’ and appears on plaintiff’s product also. 27 • Court: – Comparative advertisement permissible but should not to be intended to disparage or defame the competitor’s product. – Kiwi ad disparaging to Reckit & Colman’s product and does not hinder freedom of speech – Kiwi restrained from advertising its products in a disparaging manner. 28 Hindustan Lever v. Colgate Palmolive (India) • Hindustan Lever introduced new toothpaste called New Pepsodent, claiming to be “102% better than the leading toothpaste”. • Advertisement showed New Pepsodent superior in killing germs than any other toothpaste. • Lip movement in the ad indicated “Colgate” as the other toothpaste referred, although voice muted. Also, same jingle as used in the Colgate ad is played. 29 • Court: – Direct reference about inferiority need not be shown – reference amounted to disparagement – Ad likely to leave doubt in minds of viewers that Pepsodent was being compared with Colgate. – Injunction 30 Comparative advertising in India In principle allowed: – Tradesman entitled to declare his goods to be the best in the world – Can also say that his goods are better than his competitors’ – Can even compare advantages if his goods over products of competitor HOWEVER – Cannot, while saying that his goods are better than his competitors’, say that his competitors’ goods are bad. – Slander/defamation is not permissible. 31 (e) Sensitive products Special controls or prohibitions on advertising • Medicines • Tobacco • Food • Toys • Pornography • Credits • Slimming products • Casino games 32 (f) Advertising and children E.g. Glamorize violence in advertising directed to children E.g. Use of children in advertising 33 (g) Marketing practices • Direct marketing: via mail, fax, door-to-door, email, sms, • Unsolicited emails (spam) • Free gifts, discounts 34 4. CONCLUSIONS 35 • Create yourself, rather than using other’s creations • Be sure you own rights in your ad • ‘Clear’ your advertising compaign (in India and abroad) • Comparative advertising can mislead consumers + unfairly discredit competitors 36 • Do not use competitor’s mark in such way that it harms competitor in unfair way • Your claims must be true and accurate • No comparisons that are likely to cause confusion 37 Lien Verbauwhede WIPO, SMEs Division: www.wipo.int/sme/ 38