With recent events sparking the acceleration of digital transformation, and the rise of the e-commerce industry on a global scale, digital advertising is, more than ever, at the forefront. Advertising (and publicity, in particular) was developed with the modern consumer society. With “the saturation of markets, the globalization of trade and manufacturing and the avalanche of information disseminated without borders” (WIPO), businesses were encouraged to advertise their goods and services while creating needs and investing in advertising resources. Today, advertising is considered a product and service in itself.
Given the enormous efforts and budgets deployed to create brand loyalty, overcoming legal complexities, and challenges from an intellectual property perspective is crucial to the digital market.
At first glance, the matter may appear rather simple, as many easily and freely accessible, products and services fall under the exclusive property of an individual or an organization, along with any associated intellectual property rights. However, in terms of creativity and advertising, several intellectual property issues can be identified, namely, concerning advertisers’ efforts to protect their unique and original creations as intellectual property rights (IPRs).
For a digital advertising campaign to be effective, an advertisement must first be noticed, then remembered long enough to persuasively communicate the unique selling point of a product or service to the targeted consumer. In this creative process of swaying the consumer and influencing his/her buying decisions, there are usually one or more types of IPRs that come into action:
- Copyright, which is an exclusive legal right assigned to the originator to protect his/her creative content (whether written, visual, or audiovisual).
- Patent, which is a legal protection that extends to a few forms of advertising techniques or means of doing business. It tackles new technical solutions to a problem.
- Trademark, which protects advertising slogans, sounds, logos, business and product names, or any other signs used in advertising.
- Industrial Design Protection, which only protects the aesthetic and the visual features (e.g. graphic symbols, screen displays, web pages, etc.).
While protecting IPRs is tremendously problematic in the digital market, intellectual property strategies and other legal tools can be adopted to protect advertising creations:
- Copyright protection: An advertiser can register the advertising campaign at the national copyright office, according to the country-specific copyright laws.
- Patent protection: In countries where patent protection is available, advertisers are urged to file a patent application for creative advertising technologies.Patents and copyright can protect the software used to create online advertising campaigns, depending on national laws.
- Trademark registration: Trademarks should be registered and respected adequately and consistently in an advertising campaign. In other words, to enhance the brand’s distinctiveness and value, advertisers should stick to their trademarks’ attributes and mark them with a trademark notice or an equivalent symbol.
- Avoidance of trade secrets disclosure: A business can benefit from laws on unfair competition or trade secrets whenever the information (i.e. trade secret) divulgated (even unintentionally) gives the business a competitive advantage. This is why, a business should avoid trade secrets disclosure to the public; otherwise, it will no longer be possible to protect the information which is no longer unique and original.
A company with a unique and novel advertising idea benefits from a prevailing medium of influence. This may however carry potential abusing behaviors and misuses. Governments around the world are acting in response to pressures from right holders in this respect. However, given the relatively new and fast-changing nature of online digital content services, it is unreasonable to expect an easy tracking of behavioral patterns, and finding a more adequate and particular legislative framework, may come with its own sets of challenges.
Consequently, every business owner (especially digital marketing agencies) must put in genuine efforts to understand the legal intellectual property framework surrounding the digital advertising industry and resort to adequate legal assistance in matters of setting out the business’s intellectual property strategy. Otherwise, the infringing company may lose its IPRs or, in some more severe cases, be held liable for overstepping upon the IPRs of another person.