Brand owners of all sizes are increasingly realising the importance of applying intellectual property principles in their overall business strategy. A marketing campaign comprises of numerous assets that can be directly considered as Intellectual Property. A few notable examples of marketing collateral that would be eligible for IP protection are aspects such as:
- Commercial Identity: This comprises of brand names, visual indicators, such as logos, distinctive domain names, sub-categorised product names.
- Promotional Collateral: An originally produced newsletter, a custom-made advertisement, a branded landing page, or a unique web design.
- Creative Assets: Original artwork, photography, or literary works.
Now, navigating the possibility and the extent of protection of a particular asset within a marketing campaign and overall communication strategy will solely depend on a basic pillar of intellectual property law:
Does The Intellectual Property In Question Meet And Fulfill Requirements For Protection, As Per Its Jurisdiction?
In theory, the answer is probably yes. But delving into further detail on the types of IP will help business owners prioritise accordingly. As the importance of Intellectual Property gains traction amongst businesses, the type of IP protection that is required for an ongoing marketing campaign is often overlooked. Here is an overview of the varying types of Intellectual Property that may be involved in a full-fledged marketing or advertising campaign.
A literary, figurative, or visual sign which serves as an identifying factor for your brand is registrable as a trademark. When applied in the scenario of an ad or marketing campaign, it is common practice that brands introduce 'sub-brands', which would duly fall under the main brand name.
Expert Insight: An example of a sub-brand could be the Big Mac, which falls under the main brand of McDonald's. Or even the entire range of medications offered or produced by Pfizer as a brand, where Lipitor would be considered as the sub-brand. Such are eligible for trademark registration, under the brands' 'flagship' name.
Given the fact that they are indeed distinctive indicators of a brand, it directly signifies their eligibility for trademark registration. Taking this notion further, the question of advertising slogans arises. This is a slightly more complex concept, as due to their nature, slogans that have been put forth for trademark registration have had higher rejection rates, as opposed to actual brand names.
The grounds for rejection is usually due to the slogan's lack of uniqueness. Therefore, it is highly advisable to seek out appropriate counsel when attempting to trademark your brands' slogan. This is to ascertain that your slogan is not immediately rejected, causing you to lose large amounts of money in hefty registration fees.
A highly relevant cornerstone of IP in marketing campaigns would be Copyrights. This is due to a copyright's ability to grant its owner the exclusive right of usage on specific forms of original works. Such works could be in the form of newsletters, white papers, originally curated photographic assets, and originally scripted verbal dialogue.
Copyright laws are also applicable to a brand's original website design and custom-made landing pages. But depending on the jurisdiction, such works could also be applicable under industrial designs. As mentioned initially, the classification of the type of protection would solely rely on whether the work in question meets the set of standard registration requirements.
Contrary to other forms of intellectual property protection, copyright law is applied instinctively and is needless of actual initial registration. But don't misinterpret this principle by deciding to absolutely forego the option of registering your copyright. As this will affect your ability to enforce your rights, should you detect prominent infringements of your intellectual property.
Intellectual property laws are so versatile that they can apply to a product's aesthetic or decorative features and such is coined as 'Industrial Design'. The protection is not limited to an object's physical shape and can include its colors, linear features, and even depth of dimensions such as overall touch and feel.
Therefore, any type of creatively designed aspect of a marketable product can and should be protected. This is provided that the product or object is indeed original.
Patents and their effect on the efficacy of a Marketing Campaign
Patents and utility models make up a large sector of the intellectual property field. But whether intellectual property protection may or may not apply to a marketing campaign relies heavily on these factors:
- Whether or not the marketed invention is industrially applicable,
- Whether or not the marketed invention is original, and that originality can be supported by documented developments.
Notwithstanding the above, it must be noted that acquiring protection for a marketable patent involves a set of stringent requirements. Therefore, it is highly unlikely that a patentable invention would play a significant role in the efficiency of a marketing campaign.
Expert Insight: The sole conceivable patented invention that may play a role in the performance of marketing campaigns would be in the form of an electronic software. However, this type of protection is not yet available in most major jurisdictions, as software codes could also be protected under copyright law, rather than patent law.
Marketing Methodology and Compliance: The unlikability for legal protection
True, intellectual property laws exist to protect all creations of the mind. Just as how a well-thought-of marketing strategy would seemingly qualify as one's original creation. It is crucial to understand that it is nearly impossible to safeguard your applied marketing approach under the name of intellectual property law.
Marketing methodology is usually based on long-standing commercial principles that have been likely coined and reused repeatedly by other brands. The psychology behind consumerism and what drives a person to invest or spend money on a product lies in advertising standards that have been globally tested and proven. IP laws are only applicable to actual expression of such advertising standards, through the aforementioned mediums.
Expert Insight: A brand owner can take the necessary measures to protect all communication material within their promotional campaign, but it must be kept in mind that there is still an underlying risk of infringement. This is avoidable through thorough IP compliance strategies. Doing so will further avoid any loss of profit against potential litigation or any harm to the reputation of your brand.
Originally published June 3, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.