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 of Vietnam Law.
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.
If you are looking for an experienced IP services in Vietnam to
help you with your IP application, you should visit ANTLawyers.vn. Our
attorneys have experience with the IP process and will work closely with you as
you apply for your IP.
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