It
is undoubted that time is a “precious commodity” when you are running business,
however marketing your brand can take up plenty of your time. Earning the
awareness, respect and trust of your Client at the beginning of your
business by a marketing agency is quite effective. However, which Intellectual
Property issues should be paid attention to? Are you owner of the marketing
content or designs of logo?
Which IP rights should be aware?
Copyright:
Marketing content including articles on your website, website design, posts on
your social network platforms, music and video, slogans, architecture of your
business location.
Trademark:
logo, banner, images.
Industrial
design: Distinctive packages, such as the shape of the containers,
bottles.
Trade
Secret: Some advertising techniques or means of doing business.
Who owns the rights?
According to Article 39 of IP Law of
Vietnam, if you enter into a contract with an author for the creation of a
work, you shall be the holder of the rights, unless otherwise agreed.
Therefore, for avoiding risks, it should be clearly stated in the
marketing contract that “The hirer shall be the owner/holder of all
designs, articles or other works created by employees or partners according to
Intellectual Property Law of Vietnam”.
Once
a slogan, logo or creative idea are shown in public, they could be copied and
used by third parties. Therefore, you could consider to:
-Register the advertisement and
other copyright protected material (including a website design) and at the same
time alerting the public that advertising material is legally protected by
copyright law by a copyright notice in text on the video or images.
For registering copyright in Vietnam, it takes about 15 working days.
-Register trademarks right after your marketing
agency has finished the design. Also, you should state in the contract
that “the marketing agency shall be responsible for all damages if the
trademark is refused by the competent authority of IP because it is identical
with or confusingly similar to trademark of others”
-Relating
to trade secret which could not be registered, you should sign a non-disclosure
agreement with the marketing agency.
Who is responsible for infringement of
IP Right of the third party?
In case of outsourcing marketing campaign,
you could not manage the process of creating and designing marketing tools. For
example, the marketing agency would not report if it bases on ideas, designs,
article of other person or organization to make the design for your company.
However, in such case all information and images show the name of your brand,
customers might think you are imitating others and this negatively affects the
reputation and prestige of your company. We suggest that you should request the
marketing agency to comply with regulations on the industrial property
rights, copyrights and related rights strictly. Also, they shall be
responsible for all damages claimed by the third party if there is any
infringement when performing the scope of work.
Today,
it is impossible for you to carry out a successful advertisement without
understanding the IP issues arising when outsourcing marketing campaign. A lack
of caution can lead to the loss of a company’s own IP rights or liability for
infringing the IP rights of others. Besides, to avoid costly mistakes, you
should conduct rigorous research both from IP perspectives and other general
legal perspective such as comparing advertising, advertising licenses,
promotion regulations before launching a new advertising campaign.
It is also suggested to consult
with IP law firm and licensed IP agent for advice
to protect your rights, through IP research, registration, drafting agreements,
and handling infringement of industrial rights.
Tuan Nguyen and Thao Hoang @ ANT
Lawyers
How ANT Lawyers Could Help Your Business?
Please click here to learn more about ANT Lawyers IP Practice or
contact our IP lawyers in Vietnam for advice via email ant@antlawyers.vn or
call our office at (+84) 24 32 23 27 71
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