Good advertising can make people remember deeply, expand the popularity of enterprises and products, and help the sales of enterprises' products. However, from the point of view of intellectual property lawyers, there is an insurmountable bottom line for the quality of advertisements, that is, they must abide by the law and not infringe upon the legitimate rights and interests of others, otherwise they may not bring their best-selling products or may be subpoenaed by the court.
There are many laws that regulate advertising, such as the advertising law, which makes basic requirements for the legality of advertising. In reality, there will be no obvious illegal acts in general advertisements, but because intellectual property rights and similar legal issues are relatively hidden, many advertisers do not understand such legal issues, which leads to the infringement of intellectual property rights and similar legal rights of others in advertisements. This is an introduction, hoping to help enterprises avoid their own legal risks.
I. Portrait Rights and Performers' Rights
1, using comic images. Some advertisements not only want to take advantage of the influence of celebrities such as film and television actors, but also can't pay the cost to get the authorization of relevant people, so they adopt a similar way: use cartoon images of celebrities in advertisements. Some time ago, Zhao Benshan sued Google and Tianya Online on the grounds that the two companies used their cartoon images in their advertisements.
Because the advertisements involved used animation, mainly using the images in the sketch "Not Bad Money", whether it infringed on Zhao Benshan's portrait right or performer's right caused discussion among relevant legal persons, but it was unanimously recognized that it constituted infringement. In this case, the first-instance judgment found infringement, and the defendant was sentenced to compensate the plaintiff 1.2 million. In fact, there are many TV stations all over the country. Some use Zhao Benshan's cartoon image, some use Ge You's cartoon image, some use Shu Qi's cartoon image, some use star's cartoon image alone, and some use star's cartoon image in combination with related film and television dramas. No matter what kind of use is without the consent of the obligee himself, it infringes on the legitimate rights and interests of others, but the infringed rights and interests are different.
2. Use other people's images in disguised advertisements. Some enterprises do not use traditional advertising methods, but use a disguised way to promote themselves and use other people's images in this publicity. For example, Renren.com opened a personal homepage for Chris Lee without permission, and these advertisements were not approved by Chris Lee. In the end, Renren.com had to shut down Chris Lee's homepage and publicly apologize. In this way, it is worth discussing whether Renren is using Chris Lee to advertise. This paper thinks it is affirmative. This kind of behavior should belong to personal experiential advertising in essence. No matter what coat the enterprise puts on, the essence of advertising has not changed.
3. naked use of other people's images, that is, direct use of other people's portraits to advertise themselves without permission. For example, a drug advertisement directly uses Ronaldo as the image spokesperson, and Ronaldo doesn't know about it at all. There is no doubt about the illegality of such advertisements. This kind of advertisement generally likes to use the image of foreign celebrities, because even if foreigners want to defend their rights, they will give up because the cost of defending their rights is too high. But this kind of behavior actually shows that this kind of enterprise is dishonest and trustworthy from another angle.
Second, the copyright issue.
1, pictures in advertisements are frequently infringed. Many enterprises entrust advertising companies to design packaging for their products, and advertising companies often download some pictures online or use them directly on promotional materials or packaging of products after processing or untreated. Once this situation is discovered by the right holder of the relevant picture, it is easy to cause disputes and lawsuits.
For example, in 2008, Beijing Kyoka Garden Company sued Wuxi 1 1 involved 14 for infringement of its copyright, with a target amount of more than 350,000 yuan; The reason for the prosecution is that the defendant used the pictures of which the plaintiff has copyright in the relevant advertisements. Although advertisers often agree with the advertising company that such infringement disputes will be borne by the advertising company in the process of entrusting the advertising company to make advertisements, this internal agreement cannot prevent the infringer from bringing infringement lawsuits against the advertisers. Therefore, it is not enough for enterprises to stipulate their responsibilities when entrusting advertising companies to carry out advertising design, and more audits should be carried out.
2. Directly use other people's works in advertisements without authorization. A typical case recently is: Does Procter & Gamble use Chinese characters in its products? Soft? The defendant went to court. Although the case is still in dispute, if Procter & Gamble conducted a review of relevant intellectual property rights before using these two words, this dispute may be avoided. There is also a form of advertising that likes to use popular movies as the template or background of advertising design, such as transformers or fragments of characters as the template of advertising. This way also belongs to the act of using other people's works, and the consent of the right holder should be obtained in advance, otherwise it may constitute infringement.
Three. Disputes caused by unclear contract agreement
Some enterprises have taken intellectual property issues into account when advertising, obtained relevant authorization in advance and signed contracts. However, if you are not familiar with the laws related to intellectual property rights and the contents of various intellectual property rights, there may still be problems. The biggest problem is that some sub-rights are unclear or not agreed.
Taking the copyright of works as an example, according to different classification methods, copyright can be divided into copyright personal rights and copyright property rights, and can also be subdivided into signature rights, modification rights, reproduction rights, distribution rights and adaptation rights. If the contract is not clear about the specific form of rights, it is easy to cause infringement or breach of contract. For example, the contract only stipulates the use of a certain film to make advertisements, but does not stipulate that the film can be modified or adapted. In the process of making advertisements, it may be necessary to modify or adapt the film in order to pursue specific effects. In this case, there will be contradictions: if we pursue the advertising effect, we need to negotiate with the obligee again and obtain the corresponding authorization; If you don't want to negotiate again, you can only give up the advertising effect or risk possible infringement.
In addition, there is the question of whether to review the rights of contract signatories beforehand. At present, the rights of many works are scattered among several rights holders. Some rights holders have the right to broadcast, some have the right to network communication, and some have the right to sign and modify. Therefore, it is often not enough to choose the right holder to sign a contract at will and get authorization. It is also necessary to review the rights according to the scope of use of the advertisement. For example, if an advertisement whose main purpose is to put it on the Internet is not authorized by the owner of the online communication right of the work, it is very dangerous and disputes may occur.
Fourth, the use of advertising works
Many advertisements are themselves works after production, and advertisers often agree in relevant contracts that the rights of the works are their own. However, it does not mean that the advertising works can be used without restriction if they are agreed to be owned by themselves. The use of advertising works often involves relevant legal provisions and contractual agreements, and cannot infringe upon the legitimate rights and interests of others. Some advertisements are used without paying attention to the time and scope agreed in the relevant contracts, and are used beyond the time or scope, resulting in infringement or breach of contract.
What just happened in Ge You? Shun brand herbal tea? The case of advertising suing related enterprises is a typical case: Ge You signed a contract to become? Shun brand herbal tea? The image of the spokesperson, and filmed the advertisement, the contract is valid for two years, and the scope of prohibition is agreed; But two years later, Shun brand herbal tea? The advertisement is still on, and it has been extended to the media that both parties agree to ban. In this case, although the copyright of the advertising works may be owned by the enterprise of Huishun brand herbal tea, the contract of advertising time and scope signed by the enterprise and Ge You is equivalent to restricting the use scope of the advertising works. If it goes beyond this range, it may constitute infringement or breach of contract.
Five, shall not infringe upon other legitimate rights and interests of others.
1. Advertising content shall not infringe the trademark rights of others. Trademark registration in China is classified registration of goods, that is, the same trademark can be registered separately on different kinds of goods. In other words, the same trademark may have different trademark owners on different goods. This requires that registered trademarks can only be used on their registered goods or services, but not on their unregistered goods or services that others have registered, otherwise they may be suspected of infringing on the trademark rights of others. Advertising is also a way to use trademarks. Advertising content can not extend the relevant registered trademarks to other people's registered goods, otherwise it is suspected of infringement.
2. Advertising content shall not be falsely publicized. Advertising is often accompanied by some exaggeration, but it should be kept within the scope permitted by law and cannot be used for false propaganda. If false propaganda is carried out, consumers will misunderstand, which may constitute unfair competition, may not get complaints from consumers, and may also lead competitive enterprises to sue for rights protection. In addition, if the property rights that have not been patented are promoted as patented products in advertisements, it may not only constitute unfair competition, but also constitute a crime if the patents of others are identified as counterfeit.
To sum up, advertising is needed by every enterprise and is one of the necessary means for modern enterprises to carry out production and operation. Intellectual property lawyers remind everyone that in the process of making and publishing advertisements, enterprises need to keep their eyes open and be alert to violations of others' rights, especially those related to intellectual property rights, so as to prevent disputes and hinder the development of enterprises.