INSIGHTS
Q3 • 2023
03
Q: Can you explain the diff erent types of intellectual property (trademarks, copyright, etc.) that a brand or marketing
person should be familiar with?
Marketing professionals should be familiar with copyrights, publicity rights, and trademarks, because all of these elements are commonplace in marketing campaigns.
Copyrights Copyrights are legal protections that give creators special rights over their original works. These works can be things like books, music, movies, art, graphics, fonts, photographs, articles, or software. Copyrights allow creators to decide who can make copies of, distribute, display, or perform their works. Copyrights help creators protect their work, encourage people to be creative, and help them control how their work is used. The most important lesson for brands and marketing teams is “don’t use another’s creative works without permission from the owner.” Also, if you have independent contractors helping on the creative side of a marketing campaign, make sure that you have a contract with each of those contractors that clearly states that you either own the work they create for you or have sufficient license rights to use their work as intended. For example, usually, copywriters and graphic designers are fine with granting ownership of their work to brands or agencies, while photographers, videographers, font foundries, and musicians tend to prefer licensing their work for specific purposes. Creators can register their copyrighted
works with the US Copyright Office. Registration provides many benefits, such as providing creators with the ability to sue for copyright infringement. To learn more about copyrights, I recommend going to
Copyright.gov, which has many free resources about copyrights and how to register your copyright.
Publicity Rights Publicity rights are the legal rights of a natural human to control the use of their identity
and prevent others from using their identity for commercial purposes without their permission. Protected aspects of someone’s identity include their name (including nicknames or stage names), likeness (how they look), voice, and sometimes signature. Violating celebrities’ and other well-known people’s publicity rights is a high risk, since they (and their business partners and sponsors) can usually afford to bring lawsuits. Therefore, it’s a bad idea to use someone’s picture or name in a marketing campaign without their written permission, usually in the form of a signed publicity release or other licensing agreement.
Trademarks Trademarks are most known as company logos, brand names, and taglines, although other brand markers, such as music jingles and colors, can be trademarked if they’re sufficiently distinct and well-known. For example, UPS has trademarked their company name, logo, tagline, and special brown color. McDonald’s has done the same, plus they have trademarked their jingle. Ferrari has also successfully argued that the shape and color of their cars is trademarked because they are sufficiently visually distinct from all other cars. Trademarks distinguish one brand from another and help build customer recognition and trust. Unlike other types of intellectual property, trademarks are only protected while they are actively in use and only so long as owners take sufficient steps to prevent others from using their trademarks. When a business stops using a trademark as part of their brand for an extended period, they lose their trademark protections. Trademarks play a critical role in brand protection by providing registered trademark owners with legal rights to stop competitors from using confusingly similar brand names, logos, and taglines. Unless you have proactively registered
your trademark with a state or the federal government or you have been using your mark for a significant period of time, you have little
to no legal protection over your trademark. Registering your trademark with the US Patent and Trademark Office provides many benefits, including protection across the USA (rather than only where you do business) and across a broader class of products or services (rather than only the specific products or services you offer). The key is that marketing professionals should not use any trademarks in marketing campaigns unless their client owns the trademark or they have clear licensing rights that allow them to use the trademark in the campaign, which often must comply with the company’s brand guidelines and be subject to prior legal review and approval by the trademark owner before it can be used. Failing to obtain a license or other prior written approval before using someone’s trademark can easily lead to lawsuits and harm business relationships between the brands at issue. Check out
USPTO.gov to learn more about
trademarks.
Q: Can you give our readers examples of what should be trademarked by a company or a brand?
At a minimum, companies should consider protecting their company name, brand names, product or service names, logos, and taglines. Here are some well-known examples of different trademarks: Brand Names: Coca-Cola, Nike, Apple
Logos and Symbols: The Nike Swoosh, the Apple logo
Slogans and Taglines: “Just Do It” for Nike, “I’m Lovin’ It” for McDonald’s
Product/Service Names: “PlayStation” for Sony’s gaming consoles, “Visa” financial services
Distinctive Sounds and Musical Jingles: The NBC chimes, the MGM lion’s roar
Colors: UPS brown, Christian Louboutin red
Shapes: Pringles and Toblerone
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