“Advertising and marketing both form an integral part of the creation of intellectual property, whether it involves the development of trademarks, copyright works or advertising goodwill. Ultimately, the resulting intellectual property becomes a valuable asset – an asset that can also be copied by competitors. This means that the creativity of the advertising industry is subject to restrictions and rules, but is also protected by legislation. “– Mariette du Plessis, senior partner at leading SA law firm Adams & Adams.
A recent workshop held by Adams & Adams, in conjunction with the Brand Council of SA, demystified advertising law for an audience of creatives, students and corporates, who left the event well-versed in the intricacies of the topic.
The event was chaired by advertising guru Andy Rice, chairman of Yellowwood Future Architects, who put the presenters through their paces. Speakers included Du Plessis along with Adams & Adams partners Kelly Thompson, Danie Strachan, Jenny Pienaar and senior associate, Delene Bertasso who unpacked the subject in ‘plain English’. Probably a first for a law firm!
When it comes to launching a new brand, Du Plessis has some sage advice. “When you launch a new product, picking a really great brand is essential. Although it is tempting to go for a brand that describes your product, a really strong brand is one that is distinctive and has no connotation with your product. It can be an invented word or a dictionary word, but it must make your product stand out in the crowd of other brands on the market. And remember to do searches, on the internet and at the trade marks registry, so that you don’t infringe on anyone’s rights! ”
On the thorny subject of copyright Du Plessis is quick to point out that there is no copyright in ideas. Copyright comes into existence automatically, as long as your creation is original AND exists in a material form. “So it must be written down or recorded. Keep records of your creations – you may need it to prove that you are the creator and owner of the work. Also, remember that you do not automatically own the copyright in all commissioned works. If in doubt, rather do a transfer of copyright by agreement and make sure it is in writing.”
The hot topic of offensiveness in advertising was tackled by Kelly Thompson. “It is a basic principle of the Advertising Authority SA (ASA) Code that advertisements must be decent and not give widespread offence.” Thompson says when it comes to offensiveness in advertising, however, the important thing to remember is that it may not be problematic for an ad to offend some consumers. “It is only if there is widespread offence, and the likelihood of the average reasonable consumer, who is either hyper-critical or hyper-sensitive, being offended, that the ASA might order that an ad be pulled. And even though an ad might be in bad taste, if it is really over-the-top and humorous, to the point where nobody is likely to take it literally or too seriously, that might be sufficient to save it from being axed by the ASA.”
Many advertisers don’t realise that imitating adverts of other advertisers, and not even necessarily competitors, would be a contravention of the ASA Code of Advertising Practice. Imitation of a central concept in an advert is not allowed even if there is no obvious copying of entire advertising material. “The restriction applies to both local and foreign advertising so “borrowing” material from overseas adverts is also not acceptable and may be subject to sanction. Advertisers may find comfort in the fact that their material is protected from copying for a two year period by the Code,” says Jenny Pienaar.
Adverts must not contain content that attacks, discredits or disparages other goods, services, advertisers or advertisements. Adverts must therefore not target, whether directly or indirectly, a competitor by making disparaging or adverse remarks or suggestions about the competitor, their brand, products or services.
“Disparaging adverts comprise of a form of comparative advertising. Comparative advertising is permitted in South Africa provided that the advertising complies with the restrictive criteria set out in the Code of Advertising Practice. The overriding premise is that the comparisons made must remain factual and an advertiser must promote their goods or services on their own merits and not on the demerits of another’s goods or services,” says Delene Bertasso.
The Adams & Adams’ advertising law team has represented the advertising, marketing and promotion industries, as well as hundreds of brand owners, for many decades. Clients include name-brand agencies, advertising agencies, production companies, media companies, publishers and leading trade associations.
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