CAN ADVERTISEMENTS BE PROTECTED UNDER INTELLECTUAL PROPERTY?

INTRODUCTION

An attractive and eye-catching advertisement can be copied or used without authority by anyone. Advertisement campaigns are run by brands with the use of creative ideas. These ads must be protected for their authenticity  and creativity.

Businesses are increasingly discovering creative methods to advertise their products and services. With each new level of sophistication and innovation, additional IP rights may come into play. While the most basic advertisements might involve only the primary frameworks of copyright and trademark rights linked to a logo, more complex audio-visual works can present a variety of intricate IP issues. In a recent judgment by the Delhi High Court, it was ruled that distinctive elements in advertising campaigns can be protected under intellectual property law.

Bright Lifecare Pvt Ltd v Vini Cosmetics Pvt Ltd and Anr CS(COMM) 144/2022

In this case, Bright Lifecare Pvt Ltd (Plaintiff), a manufacturer of supplements including the MuscleBlaze (MB) product line, filed a suit against Vini Cosmetics Pvt Ltd (Defendant No. 1), which manufactures and sells deodorants and perfumes, for alleged IP infringement. The Plaintiff began an advertising campaign in March 2018 using the theme "ZIDDI HOON MAIN," emphasizing persistence with the use of words like 'ZIDD' and 'ZIDDI.' In January 2022, the Plaintiff discovered similar advertisements by the Defendant for their deodorant 'REALMAN,' using the tagline 'ZIDDI PERFUME' with similar visual elements, such as a black and yellow color scheme.

The court examined whether the Plaintiff's advertising campaign elements could be protected under IP law. It was determined that while ideas themselves aren't protectable, their expression is. The court found that the Defendant's advertisements bore significant similarities to the Plaintiff's, including the use of the word 'ZIDDI,' a similar color scheme, and themes of physical activity. The court concluded that while no monopoly exists over the concepts of 'ZIDD' and 'ZIDDI,' the Defendant's portrayal was a colorable imitation of the Plaintiff's ads. The expression, rather than the idea, warranted protection, thus ruling in favor of the Plaintiff.

 Thus mere campaign is not protectable but certain elements which are expressed and incorporated are protectable. Those elements must be distinct.

Indian law affords stringent protection to IPR in regard with many facets of advertisement crusades.

Copyright :

Copyright safeguards the part of the creation that has not been protected by other legislation such as scripts, slogans, jingles and all the audio-visual parts of advertisements. However, registration is not compulsory, though it is recommended so as to improve the legal status of the organization.

Trademark:

Trademark protection is used in brand characteristics like brand names, logos, mottoes, and packaging. The trademark can only be enforced and has an effect after it has been registered with the Trademark Registry, and gives protection throughout the country. Unauthorized copying and imitation affect the brands’ visual identity and product packaging, which is where design protection comes in handy. The registration with the Design Office provides rather protection for the exclusive use for the first 10 years and an additional 5 years.     

Trade secrets:

Trade Secrets protection include any information that is not known to the public and relates to a business, for instance, advertisement techniques and the business’s research. The use of Non-Disclosure statements and good measures of security are important in protection. Passing off safeguards unregistered trademarks and the good will that is associated with the brand. It deals with being deceived in aspects that are usually marketed in the advertisement features that confuse the consumer. The available legal redresses for any infringement on these IPRs are; Injunctions, Damages and Accounts of profit.

Intellectual Property Rights (IPR) protection is crucial for advertisements for several reasons:
Safeguarding Creativity and Originality: Advertisement entails the creation of a special script, visuals, slogans, and even music, hence requires a lot of creation. Protection of the IPRs guarantees that these unique components are not exploited hence the originality of the creation is maintained and innovation enhanced            .

Building and Maintaining Brand Identity: The trademarks and trade dress protection assist in the creation and management of brand image to the customers. When the logos, taglines, and distinctive packaging appear in the advertisements, then people begin to relate to the brand and this is what is referred to as brand awareness and loyalty. Protection of the IPR is important because it does not allow the competitors to imitate similar elements that may cause confusion to the buyers and water down the brand            .

Preventing Unfair Competition: IPR protection helps to prevent competitors from using similar methods or copying successful advertising campaigns. This helps to avoid cases of emulation and makes sure that businesses can be able to enjoy the fruits of their investment on creative advertisements without being at the mercy of other traders who may choose to copy the ideas.

Legal Recourse and Remedies: In cases of infringement, IPR protection offers legal basis through which business entities can seek redressies from the law, in form of injunctions, damages or compensation. Such a legal framework helps in discouraging potential infringers and at the same time offer a legal way through which businesses can protect themselves.

Enhancing Business Value: The research findings indicate that affect the value of a business, and that appropriate IPR protection can positively influence the value of a business. Sounds elements of advertisements should be protected as this help in creating a strong brand.
Encourage Investment in Advertising: Since the business people are assured that their advertisements are legally protected by IPR, it would motivate them to spend more on unique advertisements. This investment makes it possible to create better advertisements that will in turn engage the consumers and create sales.   

Cultural and Market Impact: This means that the advertisements that are effective become part of the society and they do influence the market for a long-time. Preserving these advertisements also safeguards their cultural and monetary worth so that the people behind them receive credit and remuneration for their creativity.

Conclusion:

In conclusion, intellectual property rights (IPR) play a vital role in protecting the creativity and originality of advertising campaigns. As evidenced by the Delhi High Court ruling in Bright Lifecare Pvt Ltd v Vini Cosmetics Pvt Ltd, distinct elements of advertisements, such as themes, color schemes, and taglines, can be safeguarded under IP law. This protection is crucial for maintaining brand identity, preventing unfair competition, and providing legal recourse against infringement. Effective IPR protection encourages investment in advertising, enhances business value, and ensures that the cultural and market impact of advertisements is preserved.