Advertisements are the primary means of driving up sales and profits for most companies. An original and unique ad campaign holds the potential to reward companies in unimaginable ways, cementing their brand image in the minds of the public. Advertisements, therefore, are of significant commercial value. Since ads are also an original expression of a thought or idea which are used to make the public attribute the ad to the particular brand, they are eligible for protection under various intellectual property laws.
Photographs, videos, audios, and written content such as dialogues are eligible for protection under Copyright Law. Brand names, product names, advertising slogans, logos and other similar elements can be protected under Trade Mark law. A new shape or design of packaging, such as a soft drink bottle, can be protected under Industrial Designs. However, the protection granted by various intellectual property rights is not absolute and unqualified and does not extend to all of the components of the advertisement. Only those elements which are discernible and distinctive can be protected.
It is pertinent to note that elements which are commonly used in advertisements of the same category of products, such as certain patterns, names, devices etc. cannot avail of IP protection. Take an advertisement for a liquid detergent for example. Most ads for a detergent use a white shirt and a washing machine. Since these elements are used by most producers of such advertisements, the same elements cannot avail protection from any IP law, since they do not cross the required distinctiveness threshold.
An advertisement campaign can be granted protection if it is distinctive and there is no likelihood of confusion or deception. The same was held by one of the judges of Delhi High Court in Bright Lifecare Pvt Ltd v. Vini Cosmetics Pvt Ltd & Anr. (2022).
Bright Lifecare (the plaintiff) started an advertisement campaign in 2018 titled “Ziddi Hoon Main”, which used variations of the words “zidd” and “ziddi”, which mean stubborn, to describe people who don’t give up despite adversities. The campaign was run on multiple digital platforms and the company used these words for a range of other slogans for its products. The products of the company include the popular ‘Muscle Blaze’ (MB) nutritional supplements, widely used by bodybuilders and athletes.
In January 2022, Plaintiff came across advertisements of a deodorant named ‘RealMan’, made by Vini (the defendant). The plaintiff argued that the defendant’s advertisements were visually similar to those of the plaintiff’s, and also used the tagline ‘Ziddi Perfume’, which was deceptively similar to the one used by the plaintiff and was therefore infringing the copyright on the cinematography and slogan contents.
Upon perusal of both advertisements, the Judge said that the two advertisements are likely to give an ordinary person who views both ads the impression that the two products are connected and made by the same company.
The Court observed that the overall theme of a dark setting, use of words ‘zidd’ and ‘ziddi’, persons working out, and the colour scheme of black and yellow is present in both Plaintiff’s and Defendant No.1’s campaign. No monopoly can undoubtedly be granted over the concept and idea of people not giving up. However, the Court cannot ignore the portrayal of the same by the usage of deceptively identical elements.
The Court, however, held that words such as ‘zidd’ or ‘ziddi’ cannot be monopolised and exclusivity cannot be granted over words, but only the portrayal and expression of creative ideas using those words.
The judge further observed that no monopoly or exclusivity can be granted on showing a muscular person working out in a gym. However, the expression of the idea must be different. Similarly, the portrayal of a person using a punching bag can also not be monopolized but the expression has to be different.
The Court allowed the defendant to relaunch their advertisements with the words ‘zidd’ and ‘ziddi’ in a modified manner, which does not infringe the copyright of the plaintiff and is not similar or identical to the plaintiff’s ads.
It is therefore settled that while words cannot be copyrighted in advertisements, their expressions and usages in a contextualized background can be.
DISCLAIMER-
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
AUTHOR:
Raunaq Bali
Student, Faculty of Law
University of Delhi
