advertisments 1
TRANSCRIPT
-
8/11/2019 Advertisments 1
1/37
IPRS ANDADVERTISMENTS-Dr. P. Sree Sudha
-
8/11/2019 Advertisments 1
2/37
2
1.
INTRODUCTION
THE GROWING ROLE OFADVERTISING IN THE
MARKET ECONOMY
-
8/11/2019 Advertisments 1
3/37
3
Today: bussinesses beckoncustomers with all types of
advertising tools
Business signs
Pamphlets, door drops
Brochures Billboards
Radio & TV
acommunications Telephone solicitations
Commercial text
messages
-
8/11/2019 Advertisments 1
4/37
4
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
-
8/11/2019 Advertisments 1
5/37
5
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
-
8/11/2019 Advertisments 1
6/37
6
This presentation
IP issues in the process ofadvertising
Protectyour IPRs in
your advertising
Dangers inviolatingIPRs of
others
-
8/11/2019 Advertisments 1
7/37
7
2.
HOW TO PROTECT YOURIP RIGHTS INADVERTISING
-
8/11/2019 Advertisments 1
8/37
8
(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
-
8/11/2019 Advertisments 1
9/37
9
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
-
8/11/2019 Advertisments 1
10/37
10
(b) How to protect your creative
advertising?
Cfr. presentation on Website
-
8/11/2019 Advertisments 1
11/37
11
(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...
-
8/11/2019 Advertisments 1
12/37
12
3.
DANGERSIN VIOLATING THE IPRs OFOTHERS
WHILE CREATING OR USINGADVERTISING CONTENT
-
8/11/2019 Advertisments 1
13/37
-
8/11/2019 Advertisments 1
14/37
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
-
8/11/2019 Advertisments 1
15/37
15
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
-
8/11/2019 Advertisments 1
16/37
16
Fashion brewery sellscalendar with unknown
persons driving car withrefreshing pint in theirhands
- without permission...
-
8/11/2019 Advertisments 1
17/37
17
Textile company sells
catalogue with SaniaMirza wearing its cloths
- without permission...
(ficticious example)
-
8/11/2019 Advertisments 1
18/37
18
(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
-
8/11/2019 Advertisments 1
19/37
19
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
-
8/11/2019 Advertisments 1
20/37
20
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
-
8/11/2019 Advertisments 1
21/37
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
-
8/11/2019 Advertisments 1
22/37
22
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
-
8/11/2019 Advertisments 1
23/37
23
(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)
-
8/11/2019 Advertisments 1
24/37
-
8/11/2019 Advertisments 1
25/37
25
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
-
8/11/2019 Advertisments 1
26/37
26
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 -
8/11/2019 Advertisments 1
27/37
27
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.
-
8/11/2019 Advertisments 1
28/37
28
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.
-
8/11/2019 Advertisments 1
29/37
29
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
-
8/11/2019 Advertisments 1
30/37
30
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.
-
8/11/2019 Advertisments 1
31/37
31
(e) Sensitive products
Special controls or prohibitions on advertising
Medicines
TobaccoFood
Toys
Pornography
Credits
Slimming products
Casino games
-
8/11/2019 Advertisments 1
32/37
32
(f) Advertising and children
E.g. Glamorize violence in advertising
directed to children
E.g. Use of children in advertising
-
8/11/2019 Advertisments 1
33/37
33
(g) Marketing practices
Direct marketing: via mail, fax,
door-to-door, email, sms, Unsolicited emails (spam)
Free gifts, discounts
-
8/11/2019 Advertisments 1
34/37
34
4.
CONCLUSION
-
8/11/2019 Advertisments 1
35/37
35
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
-
8/11/2019 Advertisments 1
36/37
36
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
-
8/11/2019 Advertisments 1
37/37
37