One of the keys to success in marketing and advertising is using fresh ideas to help clients promote their offerings and differentiate themselves from competitors. Those ideas—whether generated by your team, the client’s team, or a collaboration—are the essence of the materials you’ll develop and the campaigns you’ll coordinate.
So, imagine how unhappy you and your client would be to learn that an idea isn’t yours…or that it can never be protected. You invested significant time and effort to conceptualize, develop, and polish an idea, only to learn that this intellectual property (IP) already belongs to another business. Not only can you no longer use it, but your client may now be in legal trouble for “stealing” someone else’s IP (even if they never knew about it in the first place!).
This can happen with ads, marketing collateral, a campaign, a product or service, a brand identity, or any other idea you’ve developed. That’s why it’s essential for advertising and marketing agencies to understand IP and develop a relationship with an intellectual property law firm.
By connecting clients with an attorney who can help create a comprehensive brand protection strategy, you help position your client for future success. Plus, you increase your value to your client. Your marketing prowess and IP knowledge will only become more valuable as your client’s business scales, and its market gets more competitive.
Understanding Advertising’s Legal History
Business historians say artisans were advertising their products as far back as 3,000 years ago. And, no doubt, when one person’s clay tablet “ads” were successful in generating interest, other vendors quickly mimicked them.
Over time, people began to recognize the importance of protecting their products, services, and ideas. The concept of brand protection then progressed through four stages. Here’s a helpful background to inform where things stand today.
Early American History: Even during the start of a new nation, people began making identifiable marks on their products. For example, George Washington registered the mark “G. Washington” with a court in Fairfax, VA, in 1772. Early efforts at protecting business ideas reached another milestone when the first trade name lawsuit was decided in New York.
Late 1800s: Experts say the concept of “brand identity” gained momentum at the end of the 1800s. Patent holders discovered that having an identifiable brand was a strong tactic to further secure their inventions, products, and services.
Early 1900s to 1945: New legislation for trademarks in 1905 paved the way for federal registration of technical trademarks. During this period, businesses started using more creative names for their products, making it easier to protect them. This was a change from the practice of naming products for their founders or city of origin. Location names could only be trademarked if they had a “secondary meaning” and were arbitrary for the product, like Vienna bread.
1946 to today: By 1946, roughly 300,000 marks had been registered. The Lanham Act of that year codified the ideas of trademark licensing.
How Marketers & Advertisers Can Help Protect IP
The net effect of these developments is that present-day advertising agencies and their clients have many methods and practices available to them to help protect their IP. Here are some of the steps you can take:
Register advertisements and other protected material with the appropriate authorities, in countries where this is an option.
Include a copyright notice on advertising materials.
Register trademarks (typically logos, words, and numerals, but also animated marks and sounds).
Purchase domain names relating to a brand identity. This prevents confusion and customers ending up on a competitor’s website.
Use trademarks consistently and properly (i.e., the right size, color, font, etc.) in all marketing materials. Use the proper copyright and trademark symbols like ©, ™, and ® as appropriate.
Patent unique and advanced business methodologies and advertising technologies where possible.
Avoid inadvertent disclosure of trade secrets like customer information, internal processes and methods. Once these are made public, you can no longer protect them.
Ensure that patent-related information isn’t disclosed through marketing or advertising efforts.
IP and Marketing Campaigns
Marketing campaigns can be as simple as a series of strategic online ads. Or they can be very complex and extremely costly.
Promotional videos. Billboards. Paid celebrity appearances. Point-of-sale displays. Print ads. High-end marketing collateral. It can all be worth it if you’re conducting legal advertising. But you and your client can find yourselves having to scrap all of it if you infringe on someone else’s IP.
Your clients must assess and secure their IP before the marketing machine gets rolling. Maybe they simply need to get the assistance of a trademark attorney. Or perhaps they should talk with attorneys in many areas of expertise, including patent and copyright law. But whatever it takes, the client must have the “green light” to proceed using secured IP. That allows you to create the best campaigns and not hold back out of fear you may be infringing on someone’s IP.
At-a-Glance: When to Use Copyrights or Trademarks
Here are the typical means of protection for common marketing and advertising elements in the United States.
| Photos, written material, graphics, videos, music | Copyrights |
| Sounds, slogans | Copyrights and trademarks |
| Logos, business names, product names, domain names | Trademarks |
| Websites | Copyrights |
| Graphic user interfaces (GUIs), screen displays | Design patents |
| Software for creating digital imagery or ads | Copyrights or patents as dictated by a country’s laws |
| Geographical indications | Several laws, including special regulations for the protection of geographical indications or appellations of origin |
| Advertising techniques, means of conducting business | Patents |
| Packaging | Trademarks, trade dress, design patents |
| Names, photos, signatures, and other identity elements | Publicity or privacy rights |
| Databases | Copyright or sui generis database laws |
Ongoing Advertising IP Portfolio Protection
As a marketer, you have to continually protect your agency’s IP (and that of your clients). You’ve also got to ensure that your advertising campaigns comply with many laws and regulations.
The best way to do that is to maintain a strong working relationship with an IP attorney. They understand the legal issues around advertising and can provide services that help you and your client avoid potential pitfalls.
In addition, you should keep an eye on your client’s competitors and their marketing and advertising initiatives. That way, you can avoid investing time in ideas you won’t be able to secure for your clients.
Connect With an Intellectual Property Law Firm in Jacksonville
Protecting valuable IP isn’t difficult when you work with experienced attorneys who can help. At Wilson Dutra Law, we’ve got your back.
You understand the value of what you create. We can help you protect it for years to come. We start by determining what can be protected, the best strategies to protect it, and empowering you with choices to make an informed decision. Schedule a free IP evaluation with the Wilson Dutra Law team today.
