advertisments 1

8/11/2019 Advertisments 1

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IPRS ANDADVERTISMENTS-Dr. P. Sree Sudha


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1.

INTRODUCTION

THE GROWING ROLE OFADVERTISING IN THE

MARKET ECONOMY


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Today: bussinesses beckoncustomers with all types of

advertising tools

Business signs

Pamphlets, door drops

Brochures Billboards

Radio & TV

acommunications Telephone solicitations

Commercial text

messages


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Internet and digital technologies

Traditional role: support for good/service

Innovative digital advertisingtechniques 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


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Challenge

Advertising has become race forunique, cutting-edge, enticing way of... passing on informationto customers

facilitate and positively influencetheirbuying decisions

Difficult to keep content true to facts

Human tendency to exaggerate benefits ofproduct

Easy to cross thin line demarcating pufferyfrom misleading, deceptive or false

advertisement


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This presentation

IP issues in the process ofadvertising

Protectyour IPRs in

your advertising

Dangers inviolatingIPRs of

others


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2.

HOW TO PROTECT YOURIP RIGHTS INADVERTISING


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(a) What types of IPRs areinvolved in advertising?

Creative contentcopyright Slogans, soundscopyright/trademarks Business names, logos, domain names

trademarks GIsunfair competition, consumer protection,

certification marks, special laws on GIs Graphic symbols, screen displays, graphic user

interfaces, web pagesindustrial design/copyright

Software(to create digital ads, e.g. computergenerated imagery)trade secrets + copyrightand/or patent


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Advertising techniques or means of

doing businesspatent (not in India) Website design copyright

Distinctive packaging trademark,

industrial design, trade dress Persons identity publicity or privacyrights

Databasescopyright/sui generis

Unfair advertising methodsunfaircompetition laws, tort


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(b) How to protect your creative

advertising?

Cfr. presentation on Website


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(c) Do you own the rights in your

advertisement?

You pay freelance advertising designer tocreate advertising campaign for you on theoccasion of fashion exhibition.

Year later: you want to use some text andgraphic illustrations in your catalogue...


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3.

DANGERSIN VIOLATING THE IPRs OFOTHERS

WHILE CREATING OR USINGADVERTISING CONTENT


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(b) Use of others likeness

Tennis star Sania Mirza

promoting Tata Indicom

mobile phone

Nicole Kidman is the new

face of Chanel No 5


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In many countries: name, face, image,voice, other likeness of individual

protected by privacy and publicity rights

Right of publicity

-Persons image has

economic value

-Presumed to be result of

persons own effort

-Gives person right to

exploit own image

Right of privacy

Person has right to

protect image form

certain uses by others


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Fashion brewery sellscalendar with unknown

persons driving car withrefreshing pint in theirhands

- without permission...


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Textile company sells

catalogue with SaniaMirza wearing its cloths

- without permission...

(ficticious example)


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(c) Can you use a competitors trademark inyour 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 berestricted

Non-commercial use cannot be prevented, except

if use affects distinctiveness of trademark


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Therefore:

Use of competitors trademark in advertising is

not an infringement, so long as ...

Use is in accordance with honest practicesinindustrial or commercial matters

Use does not take unfair advantage of, or is

detrimental to, the distinctive character orreputation of the mark

India: Section 29(5) and 30 (1) Trademark Act


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How to use competitors trademark in advertising?

1. Do not alter competitors 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 competitors trademark in

metatags, linking, framing, domain names

trademark infringement, unfair competition


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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


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5. Primary meaning of your advertising should be to

inform the consumer, not to discredit or unfairly

attack competitors

6. Mark competitors trademark with trademark

symbol

7. Avoid using competitors 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

competitors to promote your own business


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(d) Comparative advertising

Coca-Cola tastes better than Pepsi

Cadillac Seville outperforms BMW 540 inslalom course

= Direct(competitor named)

NIFT has the best postgraduate programmesfor the textile, garment and allied industries

We manufacture the nicest sarees in India

= Indirect (competitor not named)


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Cable&Wireless PLC v British

Telecommunications (UK, 1998)

Telephone company compares prices

of its telephone service with thoseof competitor Accurate and not intended to mislead

the public

ec o man o n a


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ec o man o n a .v. Kiwi T.T.K. Ltd. (India)

Advertisement on electronic mediashows a bottle of KIWI which doesnot drip as against another bottle

described as OTHERSwhich drips andis shown as BrandX.

Brand X looks similar to the plaintiffs

Cherry Blossom. There is a red blob onBrand X which represents CHERRYand appears on plaintiffsproduct also.
http://images.google.co.in/imgres?imgurl=http://chiswickpolish.homestead.com/files/logos/cbtin.JPG&imgrefurl=http://chiswickpolish.homestead.com/&h=368&w=392&sz=47&tbnid=nQh21YEC4q4J:&tbnh=112&tbnw=119&start=1&prev=/images%3Fq%3Dcherry%2Bblossom%2Bshoe%2Bpolish%26hl%3Den%26lr%3D%26sa%3DGhttp://images.google.co.in/imgres?imgurl=http://chiswickpolish.homestead.com/files/logos/cbtin.JPG&imgrefurl=http://chiswickpolish.homestead.com/&h=368&w=392&sz=47&tbnid=nQh21YEC4q4J:&tbnh=112&tbnw=119&start=1&prev=/images%3Fq%3Dcherry%2Bblossom%2Bshoe%2Bpolish%26hl%3Den%26lr%3D%26sa%3DGhttp://images.google.co.in/imgres?imgurl=https://margaretkimuracosmetics.ourssl.net/catalog/images/KiwiLiquidShoePolish.jpg&imgrefurl=https://margaretkimuracosmetics.ourssl.net/catalog/index.php%3FcPath%3D41_43&h=221&w=221&sz=30&tbnid=O5aV45U4R30J:&tbnh=102&tbnw=102&start=29&prev=/images%3Fq%3Dkiwi%2Bshoe%2Bpolish%26start%3D20%26hl%3Den%26lr%3D%26sa%3DNhttp://images.google.co.in/imgres?imgurl=http://ace.imageg.net/graphics/product_images/pACE2-1189265reg.jpg&imgrefurl=http://www.discountshoppingsite.com/hardware-tools1/cheap6/index20.htm&h=220&w=220&sz=14&tbnid=BCLnCDQNypgJ:&tbnh=102&tbnw=102&start=4&prev=/images%3Fq%3Dkiwi%2Bshoe%2Bpolish%26hl%3Den%26lr%3D%26sa%3DG


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Court:

Comparative advertisement permissible butshould not to be intended to disparage ordefamethe competitorsproduct.

Kiwi ad disparaging to Reckit & Colmansproduct and does not hinder freedom ofspeech

Kiwi restrained from advertising itsproducts in a disparaging manner.


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Hindustan Lever v. Colgate

Palmolive (India) Hindustan Lever introduced new toothpaste called

New Pepsodent, claiming to be 102% better thanthe leading toothpaste.

Advertisement showed NewPepsodent superior inkilling germs than any other toothpaste.

Lip movement in the ad indicated Colgate as theother toothpaste referred, although voice muted.Also, same jingle as used in the Colgate ad isplayed.


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Court:

Direct reference about inferiority neednot be shown reference amounted todisparagement

Ad likely to leave doubt in minds ofviewers that Pepsodent was beingcompared with Colgate.

Injunction


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Comparative advertising in India

In principle allowed: Tradesman entitled to declare his goods to bethe 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 competitorsgoods are bad.

Slander/defamation is not permissible.


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(e) Sensitive products

Special controls or prohibitions on advertising

Medicines

TobaccoFood

Toys

Pornography

Credits

Slimming products

Casino games


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(f) Advertising and children

E.g. Glamorize violence in advertising

directed to children

E.g. Use of children in advertising


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(g) Marketing practices

Direct marketing: via mail, fax,

door-to-door, email, sms, Unsolicited emails (spam)

Free gifts, discounts


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4.

CONCLUSION


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Create yourself, rather than usingothers creations

Be sure you own rights in your ad

Clear your advertising compaign (inIndia and abroad)

Comparative advertising can misleadconsumers + unfairly discreditcompetitors


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Do not use competitors mark in such waythat it harms competitor in unfair way

Your claims must be true and accurate

No comparisons that are likely to cause

confusion


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