IP and Business: IP in Advertising

Advertising is as old as commerce. Some 3,000 years ago, shoemakers and scribes promulgated their services on clay tablets. Ancient Greeks used town criers to proclaim the arrival of ships laden with wine and spices. Today, businesses beacon potential customers with attractive signs, brochures, billboards, radio and television commercials, telemarketing, text messages, e-mails, Internet banners and pop-ups, rich media advertisements¹ and more. For a number of online business models, receipts from advertising are the main or sole source of income.² To be effective, an advertisement must be first noticed, and then remembered long enough to communicate persuasively the unique selling points of a product or service. Thus, advertisers race to create new and enticing ways of communicating information to customers to influence their buying decisions. This article deals with intellectual property (IP) issues in the creative process of advertising, from how advertisers can protect their exclusive rights in their creations, to the dangers of violating the IP rights of others.

Which IP rights?

The elements of a good advertisement are likely to be imitated or copied by others. So, businesses need to be aware of the various IP rights that can come into play when creating content for an advertisement or running an advertising campaign. These are summarized in the table below.

Businesses are finding ever more inventive ways to advertise their products and services. Each level of increased sophistication will occasion additional IP rights. The simplest advertisement may involve only the copyright and/or trademark rights associated with a logo; whereas advanced audio-visual works may raise many complex IP issues.

Protection strategies

Creating a successful advertising campaign often requires significant investment of time and money. Competitors are likely to try to free ride upon an innovative company's creativity, skills and efforts. Businesses need therefore to devise appropriate strategies to protect their advertising creations by using the legal tools at their disposal in the IP system. Such strategies may include:

* registering the advertisement and other copyright protected material (including a website) with the national copyright office in countries which provide this option;

* alerting the public that advertising material is legally protected by copyright law. This may be done simply by means of a copyright notice;

* registering trademarks...