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WIPO-NIFT “TRAINING THE TRAINERS” WORKSHOP ON INTELLECTUAL PROPERTY RIGHTS New Delhi, June 20 to 24, 2005

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WIPO-NIFT TRAINING THE TRAINERS WORKSHOP ON INTELLECTUAL PROPERTY RIGHTS New Delhi, June 20 to 24, 2005 Slide 2 2 Intellectual Property and Advertising Lien Verbauwhede Consultant, SMEs Division World Intellectual Property Organization (WIPO) Slide 3 3 1. INTRODUCTION THE GROWING ROLE OF ADVERTISING IN THE MARKET ECONOMY Slide 4 4 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 Slide 5 5 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 Slide 6 6 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 Slide 7 7 This presentation IP issues in the process of advertising Protect your IPRs in your advertising Dangers in violating IPRs of others Slide 8 8 2. HOW TO PROTECT YOUR IP RIGHTS IN ADVERTISING Slide 9 9 (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 Slide 10 10 Advertising techniques or means of doing business patent (not in India) Website design copyright Distinctive packaging trademark, industrial design, trade dress Persons identity publicity or privacy rights Databases copyright/sui generis Unfair advertising methods unfair competition laws, tort Slide 11 11 (b) How to protect your creative advertising? Cfr. presentation on Website Slide 12 12 (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... Slide 13 13 3. DANGERS IN VIOLATING THE IPRs OF OTHERS WHILE CREATING OR USING ADVERTISING CONTENT Slide 14 14 (a) Can you use material owned by others in your advertising? Technocal tools and software Copyright works Photographs Freeware Material in public domain Cfr presentation Website Slide 15 15 (b) Use of others likeness Tennis star Sania Mirza promoting Tata Indicom mobile phone Nicole Kidman is the new face of Chanel No 5 Slide 16 16 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 Slide 17 17 Fashion brewery sells calendar with unknown persons driving car with refreshing pint in their hands - without permission... Slide 18 18 Textile company sells catalogue with Sania Mirza wearing its cloths - without permission... (ficticious example) Slide 19 19 (c) Can you use a competitors 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 Slide 20 20 Therefore: Use of competitors 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 Slide 21 21 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 Slide 22 22 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 Slide 23 23 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 Slide 24 24 (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) Slide 25 25 Can you compare qualities of your products with those of competitors? Some countries: Truthful comparisons are informational for competition Beneficial to competition Some countries: Only allowed if specific requirements fulfilled Some countries: Forbidden Some countries: Forbidden for certain products Slide 26 26 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 Slide 27 27 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 plaintiffs Cherry Blossom. There is a red blob on Brand X which represents CHERRY and appears on plaintiffs product also. Slide 28 28 Court: Comparative advertisement permissible but should not to be intended to disparage or defame the competitors product. Kiwi ad disparaging to Reckit & Colmans product and does not hinder freedom of speech Kiwi restrained from advertising its products in a disparaging manner. Slide 29 29 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. Slide 30 30 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 Slide 31 31 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. Slide 32 32 (e) Sensitive products Special controls or prohibitions on advertising Medicines Tobacco Food Toys Pornography Credits Slimming products Casino games Slide 33 33 (f) Advertising and children E.g. Glamorize violence in advertising directed to children E.g. Use of children in advertising Slide 34 34 (g) Marketing practices Direct marketing: via mail, fax, door-to-door, email, sms, Unsolicited emails (spam) Free gifts, discounts Slide 35 35 4. CONCLUSIONS Slide 36 36 Create yourself, rather than using others 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 Slide 37 37 Do not use competitors 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 Slide 38 38 Lien Verbauwhede WIPO, SMEs Division: www.wipo.int/sme/