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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