Gone are the days of ‘free’ content. Legal battles are in, says our guest author.
As brand creators, we always advice folks to create their own content, be it the name of a product/service, logo, package design, images or sounds for an ad campaign, and videos for social media posts. Even if you intend to market your products in a local market, the moment you start a website or use social media, you are exposing your product globally. And, there are both national and international law agencies that take care of their client’s copyright/trademark properties.
For a product you launched in Kerala, you may get a lawsuit from the US. For a downloaded picture you used in a local ad, you may get a lawsuit from Germany. Last but not the least, if you sing a song at a marriage, you may get a lawsuit from God knows where. If you still believe this is just a warning to be ignored, then do read some real life anecdotes below:
Name of your company/product/service
One year back, one of our clients approached us to create a logo and package design for a product. The FMCG product (toothpaste) was intended to be launched in a state-wise campaign. The name of the product was already fixed by the client. It resembled another product already in the market (packed food item).
Though both these products were in different categories, they would be sharing shelf space in the market. So, we advised the client to trademark the product name and then go ahead with the logo designing part with this particular name. But the client was quite confident that the other company has no trademark on this particular product category.
Still, we insisted on getting the product name registered so that later on, there isn’t any conflict or claim from the other company, a big conglomerate. The client said they have applied for trademark and went ahead with the launch.
The product was successfully received in the market. The client became more confident and decided to go ahead with ads in other states. Then came a lawsuit from the big conglomerate. It approach the Supreme Court asking for a ban on this particular product because the new brand, though in another category, was using a brand name used by the big company for many years.
The court ordered instant ban on the production or marketing of the new brand. What happened next? The new brand had to withdraw all its products, and the marketing and logistics expenditure to make these products available in the marketplace, went down the drain. The brand had to change the name and get back to the market in no time or it would be finished.
Imagine the crores of rupees lost by a new company. Some may come out of this situation and some may perish. If the new company had got its product name registered, as per the Indian law, there would be at least a chance to fight it out legally.
So, even if you are starting a small company catering to a small market, do register your company name, product name, logo, etc., before spending money on venturing out to the market.
Earlier, you could create a logo similar to another brand and easily use it in the local market. Internet and social media has made this dangerous nowadays. One of our clients, whose product was selling only in the local market, got a claim from the US, citing the use of similar logo of a company there. And, you will be amused to know the details of this incident.
Our client’s product is edible oil and the US company that raised the claim, is a music event company. It had sent the screenshot of both logos, as our client had a website, with details of their company and products. Both had entirely different names, but the logos had similarities, though not that similar when looked in detail.
This often occurs without the knowledge of the designers or approvers from the client’s side. But you should have legal rights over your own logo. Our client had registered their logo as per the Indian law and they could have given a reply to the US company that could have accepted it.
So, create your own logo and register it first. Also, beware of creating logos through free automatic logo creator websites/apps, as anyone can create similar logo through it without being aware of the existence of the other.
Now, this is one of the biggest challenges facing small brand owners. Everyone easily downloads whatever images they need from the Internet and uses it anywhere they want. Recently, a corporate brand I have worked with, got a lawsuit from a law firm in Germany, citing copyright infringement of one of its clients - a photographer in Kerala. And, the amusing fact was that the image was of a public place of worship. Anyone can go and capture a picture there.
The client thought this was a fake claim and ignored it at first, but then after repeated mails, contacted the law firm in Germany and confirmed it to be a genuine one. The photo was taken by the photographer, who then uploaded it on to a website, which sold these images for a price.
Before purchasing a picture, creative designing companies download the demo version, create an ad and send this for the approval of clients. Post-approval, the original version of the image is purchased and used in the final output.
In this case, someone from the client’s side inadvertently uploaded the ad on to the website before purchasing the picture. The photographer was contacted by the client and he, along with other photographers, had signed agreements with the German law firm, which uses reverse image search technologies and see to it that the photographers get their due for their images. The day and date of the image upload, along with the IP address of the computer which uploaded the image, was there in the lawsuit warning email.
The claim had to be settled by paying money in Euros to the German company, which came to about Rs 10,000, whereas the original picture, if purchased from the website, would have cost only Rs 500. Even if you buy images from websites, make sure it has exclusive rights because there are several instances where the same image used by competitor brands, appear side by side out there, which really doesn’t do good to any brand.
So, create your own original images, do spend on photo shoots with contract models and professional photographers. It would be cheaper than shelling out a lot of money later on.
When Ilaiyaraaja said he will have to get his due for his songs being used everywhere, even in local festivals or music events, everyone ridiculed him and thought it to be absurd. But it is a fact that around the world, one of the most important copyright infringement lawsuits are based on music rights.
And now, the Delhi High Court has appointed Dr Arul George Scaria, associate professor at National Law University Delhi, to advice on how to create a legal framework for music copyright infringement issues of using songs at marriages, music events and social gatherings.
Even in social media sites like Instagram, we know that a Reel downloaded with music added in it, won’t have the music when you upload it somewhere else. Every YouTuber knows about copyright strike claims for every piece of music they add on their videos.
So, if you are even thinking of using a piece of music in your ads or posts on social media to promote your brand, make sure to create your own music piece. Pay musicians and make them create a music piece for your own brand and avoid legal implications later on.
When a brand tries to promote its business by using video clips created by someone else, without their permission, it can be sued for using it. Again, if you ask a YouTuber, they will vouch for this. Even for a video taken by you at a festival, may get copyright claim by an organisation if it was uploaded by them first. You have to give clarification regarding this to get the claim overturned.
So, create your own videos, rather than using video clippings of someone else, as you will find legal proceedings at your doorstep, which may consume your valuable time, energy and money. At least try to purchase such video with proper contracts in place, before using existing videos.
Original content is the present and the future
In short, not the future, but even the immediate present is all about copyrights, trademarks, registrations and such laws. So, be aware of every single law regarding these issues before going ahead and creating a brand or investing in your product packaging or marketing.
Not only creating something first, but also legally registering it as yours first, is important. Make sure that you are creating something original and get it legally approved as yours. Create your own content, as original content owners are going to be the winners of both the markets and the hearts of the consumers.
(The author is co-founder, head — branding & strategy, Blackswan (India) Ideations.)