29 April 2010 - 2:11pm | posted by | 4 comments

IP lawyer speaks out against political ad tactics which flout IP laws

IP lawyer speaks out against political ad tactics which flout IP lawsIP lawyer speaks out against political ad tactics which flout IP laws
IP lawyer speaks out against political ad tactics which flout IP laws

Much of the election advertising has been good fun, but a leading IP lawyer has told The Drum that the political parties are setting a potentially dangerous precedent.

Speaking in a week that has seen the BNP hauled over the coals for using an image of Marmite in one of its TV broadcasts and recently David Cameron was portrayed as Gene Hunt from BBC TV series Ashes To Ashes in a Labour campaign poster, Rob Hawley, a partner at Mathys & Squire LLP, has warned that marketers who follow suit and mimic the intellectual property of other companies could face serious consequences.

IP law specialist Hawley said: "It’s all been good fun to watch from the sidelines, but the parties could be leaving themselves wide open to a whole range of problems.  In general terms, if they are using any images that they have not created themselves, without the permission of the copyright owner, they could face infringement action.  Unilver plc has already threatened the BNP with legal action following the use of its Marmite brand in a party broadcast – no doubt based as much upon not wishing to be associated with the controversial organisation, as upon the perceived infringement of its copyright.

"The way in which the election campaigns have developed acknowledges that these days it is not unknown for the marketing of one brand to be imitated or subverted by a competitor or even an admirer!  This might be done with the best of intentions, and may be very creative and amusing for audiences, but IP rights carry as much weight in the fast-moving digital universe as in the real world.  

"Marketers have a responsibility to protect their clients’ reputations, and would be well-advised to obtain permission from the owner of any IP being used in that campaign. While the political parties are likely to face nothing worse than some public embarrassment, a campaign that causes real damage to an owner of IP rights could find itself the subject of costly legal action – a high price to pay for a dig at a rival."

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Comments

Anonymous (not verified)
29 Apr 2010 - 15:32
Anonymous's picture

Complete and utter rubbish.

You don't need Audi's permission to show a car they no longer make. The copyright for the shot rests with the photographer, not the brand.

You don't need permission to make a cultural reference to Little Britain. It's not defamatory and the words 'little britain' are not a trademark.

IPA agencies generally know what they are doing. No need for lawyers to complicate things with daft fees and needless fear-mongering.

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Anonymous (not verified)
29 Apr 2010 - 16:32
Anonymous's picture

So, was the BNP right to use a Marmite pot in their film without asking Marmite Anon. You advertising people seem to think you can just use anything you like and then you get all arsey when someone else uses one of your ideas.

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Anonymous (not verified)
29 Apr 2010 - 17:47
Anonymous's picture

BNP were absolutely right not to ask permission as they would never have got it.

Did they need it? No. Even a lawyer on an earlier post expressed uncertainty over the legal position.

The issue is not about copyright infringement. The valid complaint is about the context in which the brand is being shown. The BNP has overwhelmingly negative connotations and few if any brands would welcome the association.

If Harrods included Marmite in one of their ads without permission from the brand owner, would Unilever complain?

In the commercial world, it is perfectly legal to feature a competitor's product in your advertising - without their permission - to make claims about competitive advantages, so long as they are true and not denigratory in tone.

Hope that sets 'you legal people' straight...

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Anonymous (not verified)
29 Apr 2010 - 21:03
Anonymous's picture

Sure, they are registered in certain classes (9, 41 etc) but none of which are infringed by the poster in question. The phrase is not copyright.

Checked that in about 45 seconds on the IPO website. Not something I'd have to pay a fear-mongerer £1,200 for.

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