YOU CAN'T DO THAT! We'll get sued!” “Trust me, you simply cannot use another company's trademark.” “The Can Spam Act doesn't apply, does it?” “If you don't stop this campaign, our lawyers will make sure you enter a world of pain.” “Doesn't that violate the copyright law?” “Wait, I think that's false advertising.”
These and similar refrains are heard frequently in — and by — corporate marketing departments. And the chorus is against the backdrop of voice-alike lawsuits by Tom Waits, enforcement actions by attorneys general, the Recording Industry Association of America's suits against music downloaders, and new legislation intended to ban the use of children in Internet word-of-mouth marketing.
It's easy, and tempting perhaps, to take one of two extremes: Either adopt a libertarian-like mindset and throw caution to the wind or become paralyzed by the seemingly complex web of state, federal and international laws. But there's a more prudent and less taxing way to strike the right balance. Understanding the basics of marketing law and being able to spot the issues will enable you to stay on the straight and narrow and avoid having to sell your strategic and creative souls to the legal devil.
The following issues often arise:
- A copyright is not a trademark
Intellectual property for sure, and recognized in much of the world, but copyrights and trademarks are completely separate animals. A trademark is an indication of the source of origin of goods or services. A trademark is something of a legal monopoly that can consist of a word, multiple words, a design and even a color or sound.
Trademarks can be registered federally and internationally, but they don't have to be. Ownership rights that come from priority in use, and coined or arbitrary marks, as opposed to ones that are merely descriptive, are stronger. Infringement occurs when a use is likely to cause confusion about origin, association or connection.
Regarding copyrights: This form of intellectual property protects original works of authorship fixed in a tangible form of expression — books, white papers, sound recordings and pictorial works, just to name a few. Ideas are not protected. And with a copyright comes certain exclusive rights. They include the authority to reproduce the work in copies, to prepare derivative works, and to perform or display the work publicly. Copyrights are subject to term lengths. While they can be infringed too, specific uses are permitted.
- UDAPs
That would be Unfair and Deceptive Acts or Practices. Not a good thing. The Federal Trade Commission is very adept at stopping them, and so are the various state attorneys general.
Generally, a marketing effort must be truthful and non-deceptive, there must be a reasonable basis to support the claims made and the communications cannot be unfair — that is, cause injury that a consumer could not reasonably avoid.
- Internet laws
While there are plenty of laws that speak specifically to online activities, a marketer must be aware that many fundamental advertising-law principles developed well before the Internet existed still apply. Trademarks, copyrights and the right to be free from false advertising, for example, are more than alive and well online. Cyberspace is not a lawless frontier for the marketer.
- Jewelry? Wool?
Remember that some industries are regulated by the federal and state governments. For example, marketing involving franchises, environmental claims, credit and financing, jewelry, wool and textiles, are all subject to government regulation when “free” offers or guarantees are made.
- Rock stars
A marketer can't use a person in a campaign without his or her consent. Similarly, it can't imply an endorsement or sponsorship. This includes the use of a likeness, voice or name. Typically, concerns in this area involve the use of celebrities. However, there also are state laws that protect publicity rights, which are intended to protect against the misappropriation of private names and likenesses.
When developing a marketing effort, take the time to stop and spot the legal issues. With the kind of investment required to produce a successful campaign, a marketer can't risk going the way of the lawbreaking shadow boys Tom Waits sings about. With thanks to Mr. Waits, the marketers who had the style but not the grace, had the wind but not the shutter…and had the stripes but not the tie.
MARK YOUNG (mark@partnersandsimons.com) is communications counsel/director, professional services practice for Boston marketing communications agency Partners and Simons.
