When Marketing Clashes With Intellectual Property
Updated: January 23, 2020
Intellectual property is usually near the bottom of the business radar. Small businesses and nonprofits usually operate on a shoestring marketing budget. They rely on word-of-mouth and Do-It-Yourself promotions to market their products and services. Kudos to those with the time and talent to do so, but be aware of intellectual property laws if you do.
Small business owners and nonprofits have a duty to understand basic intellectual property law. At the very least, they should be aware of their basic legal responsibilities and know when to ask questions. Willful ignorance does not excuse misappropriating someone else’s intellectual property.
What is intellectual property?
In very, very general terms, it is something for which you can obtain a patent, trademark, or copyright. With a patent, trademark, or copyright you receive legal protections that limit how and when others can use your property.
Intellectual property is all around us. We see it in logos, slogans, book jackets, published writings (including blogs), artwork, and even the design of your cereal box or shape of your soda bottle. Once you recognize it, you will see it everywhere – including in your own business or nonprofit.
How can my marketing infringe on someone’s intellectual property rights?
You do not want to infringe on someone else’s patent, trademark, or copyright. There are many types of infringement, but here are some common examples of infringement you want to avoid.
- Using a business name or product name that is already owned by someone else. Before you launch a new business or product, you should investigate whether you have the legal right to use your intended business name or product name. With billions of companies and products, your preferred name may already be used by another. You do not want to spend money on marketing materials, product development, and signage only to learn you cannot use that name.
- Using photos and artwork without permission. It is so simple to go to the internet and find the perfect image for your marketing materials. Unfortunately, you cannot snap that image onto your marketing materials or website unless you have the owner’s consent. Sometimes you can license or obtain permission to use the image. If not, you will have to find another image.
- Plagerizing. Remember that word from high school? Written, visual, and audio works enjoy copyright protection upon publication, even publication on the internet. This means you cannot plagiarize or “borrow” someone else’s written words, be it a blog post, book, brochure, or whatever. There are also instances in which quotes and parodies can infringe upon someone else’s copyright. The same thing goes for music. “Borrowing” snippets of music for your ad campaign without consent and without payment could cause you a legal and financial headache. Don’t “borrow”. Either license the work or create your own written content and music.
- Creating a logo/slogan/product that is a little too similar to someone else’s. Logos, slogans, and product designs can enjoy intellectual property rights. If you design your own logo, slogan, or product, you should consult with an attorney to ensure you do not violate someone else’s property rights. You could lose a lot of time and money having to redesign your logo or slogan and replace all of your marketing materials, should you be found to infringe on another’s property.
These are just three common examples. There are many, many more ways to infringe (accidentally or intentionally) on another’s intellectual property. It is a smart investment to seek professional advice regarding your marketing materials.
Not convinced yet? Ponder this: if you spent a lot of time and money developing a protectable work, wouldn’t you be upset to find others using it, distributing it, and even making money from it without your consent?
Lastly, remember to take the steps necessary to also protect your intellectual property (which will be discussed in a future post).