A hidden connection is stronger than an obvious one”. In the world of advertising many hidden connections exist, which need to be moderated. Most countries have advertising guidelines which address issues such as unfair business practices, false associations, unauthorized use of products, parody and surrogate advertising. In many countries, advertising guidelines are issued as specific trade practice guidelines. it is important not only to look at the guidelines that may be prescribed by the relevant authority, but also to examine those in other countries where the advertisement could appear thanks to the effect of advertising using the Internet, mobile networks or satellite television. In India, the Code of Advertising Practice of the Advertising Standards Council of India (ASCI) has no legal status; however, it is binding on all advertisements that are displayed in India through a notification in the Official Gazette. It applies to advertisers; advertising agencies; and advertisements that are created abroad but released in India. ASCI is a voluntary Self-Regulation council, registered as a not-for-profit Company under section 25 of the Indian Cos. Act. The sponsors of the ASCI, who are its principal members, are firms of considerable repute within Industry in India, and comprise Advertisers, Media, Ad. Agencies and other Professional/Ancillary services connected with advertising practice. Any complaints against an advertisement should be addressed to the ASCI.
P 23 IP ISSUE COM
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. Protection of relevant IP rights Several elements of an advertisement, such as …..
the protection of the Yahoo! yodel as a sound mark; the colour combination of red and white for Colgate; the colour yellow for Pedigree; and Disney characters such as Mickey Mouse and Donald Duck.may be protected under trademark law, whereas the advertisement in its totality may be protected under copyright law. Further, under copyright law originality is important, rather than distinctiveness as prescribed under trademark law. Therefore, it is possible that all aspects of an advertisement may be protected by copyright, while some aspects may be protected under trademark law.
Prevention of trademark dilution
Dilution of trademarks can occur inadvertently through advertising. An advertisement which uses trademarks to advertise products should make certain that it does not dilute, reduce or blur the mark in any way. Such dilution may occur through: Tarnishment; degradation; parasitism; or freeloading. Any unauthorized use by a competitor in which it seeks to ride on the coat tails of the mark and benefit from the mark’s goodwill and reputation results in the dilution of the mark. The unauthorized use of trademarks such as OLYMPICS and SUPER BOWL has been highly contested by the mark owners in order to prevent freeloading and dilution. The types of advertisement prohibited under the ASCI guidelines include advertisements which: incite people to commit a crime or promote disorder and violence or intolerance; deride any race, caste, creed or nationality; adversely affect friendly relations with a foreign state; directly or indirectly promote restricted or prohibited goods; or use particular prohibited words. For example, use of the word ‘free’ to describe a scheme or a product must comply with the code and the law. In India, the use of the word ‘free’ in the offer Buy one, get one free is governed by the ASCI code and the Consumer Protection Act 1986. No advertisement can be framed so as to abuse the trust of consumers or to exploit their lack of experience or knowledge.
Where a claim is made that if one product is purchased another product will be provided `free’, the advertiser is required to show, as and when called upon by The Advertising Standards Council of India, that the price paid by the consumer for the product which is offered for purchase with the advertised incentive is no more than the prevalent price of the product without the advertised incentive. Advertisements for gambling are prohibited in India. The ASCI code, suggests that use of the words ‘gaming’ and ‘casinos’ should be avoided. Even the incorporation of a visual representation of a gaming room or table could be construed as indirect advertisement.
A trader is entitled to boast about its product for the purpose of its promotion only, however untrue the boast may be, and for that purpose can even compare the advantages of its goods over the goods of others. However, it cannot mention the competitors’ goods in a disparaging manner. The Consumer Protection Act 1986 allows a consumer association, the central government or a state government to take up a case of unfair trade practice before a consumer forum. Consumers can also bring such an action before the ASCI. Therefore, advertisers should ensure that an advertisement does not dilute its brand value and that they have cogent facts to back up their claims.The Emblems and Names (Prevention Of Improper Use) Act 1950 prohibits the use of certain names,emblems and pictorial representations in advertising.
These include: The Indian national flag; the name, emblem or official seal of the government of India or any state, or any other insignia or coat of arms used by any such government or by a department of any such government; and pictorial representations of Mahatma Gandhi, Pandit Jawaharlal Nehru or the prime minister. The use of any such names or emblems is strictly prohibited and a violation is punishable by a fine of up to Rs 500.
Advertising today is not limited to print and television; the importance of protecting a brand and other intellectual property over the Internet is becoming essential to prevent damage to goodwill and reputation. A few such measures include the following.Metatags the use of keyword advertising through sponsored links by the use of metatags constitutes unauthorised use in commerce. Such metatags may be placed in: Browsers; proxies; search engines; and content management systems.Such search terms should also be protected under trademark and copyright laws to ensure that no surrogate or unauthorised advertising takes place.
A quickly evolving phenomenon on the Internet is the ‘hate’ or ‘gripe’ site. A hate site invariably uses itsvictim’s trademark or a slight variation in its domain name. Its objective is solely to damage the reputation and goodwill of the victim. In such cases, an action for trademark dilution and deceptive trade practice, as well as damage to reputation, may be brought against the site if the trademark is commercially targeted. It is thus necessary for a brand to ensure that it is protected in all possible media, particularly online if it targets global consumers.
Several products and services cannot be advertised in India (eg, tobacco, alcohol). An action for surrogate advertising can be taken against an advertisement if there is misrepresentation that is likely to deceive or confuse the public and this misrepresentation has damaged or will damage the goodwill of the claimant. An advertisement must ensure that it does not fall within the ambit of surrogate advertising, whether knowingly or unknowingly.Personality rights and parody a celebrity or a well-known figure has rights to his or her personality and persona. Such rights may be infringed by advertisements. Two types of legal action can be taken against advertisers.
If the well-known individual is being parodied, an action for defamation may be instigated. An advertisement which depicts an event or occurrence that is in the public domain shall not qualify as an ‘untrue statement’. Parody in commercial use is not a valid legal defence in India.
Fraud and misrepresentation
Unauthorised use of a celebrity’s picture, caricature or animated character to endorse a product may be prosecuted for the tort of fraud and misrepresentation, as well as injury to the celebrity’s goodwill. Such advertisements help to create brand value as they communicate to consumers universally. For example, HSBC’s ‘Red Border’ campaign has been successful in establishing the bank’s transborder reputation and enhancing its goodwill by avoiding the regional language trap. Its message that it caters to all, without boundaries, is conveyed without the need for words. It is powerful, evocative and makes an impact. In light of the concerns discussed above, it is important that: advertisements do not violate any applicable laws; the advertiser carries out due diligence to check what can be protected and to protect what is “intended for commercial exploitation”: and the advertisement enhances the brand value. Advertising as a business strategy is a powerful tool for enhancing, maintaining and developing brand equity. Therefore, it is imperative for companies to protect the content of an advertisement and to ensure that it is in line with the applicable laws.