LEGAL: Concepts, Ideas and Marketing Material - How to Protect These Valuable Assets

The marketing of your products and services inevitably generates creative and innovative marketing ideas. A particularly creative marketing idea may prove to be an extremely valuable piece of intellectual property (IP).

Your marketing material is one of the most critical business assets that you have. As with any other asset, you need to protect it in order to avoid financial loss to your business. It is vital to understand how best to protect this valuable asset.

As discussed in my article in the July issue of Equestrian Life, the brands which appear in your marketing material are protected by way of trade mark registration. Marketing material such as advertisements, brochures, articles, blog postings, infographics, jingles and any other kind of publication are protected by way of copyright.

Copyright protects original works of authorship and applies to any work once it is made available in a material form. You cannot copyright a thought or spoken idea, but once that idea is recorded or written down, copyright automatically subsists. It is important to note that in South Africa it is not (contrary to popular belief) possible to register copyright with the exception of cinematograph films.

So what should you be doing? Here are some practical steps and ideas to get you on the right track:

· Keep your team small. When you are discussing and considering new marketing ideas, keep your team small and limited to those you really trust. Make sure that your team members sign an employment contract which has an IP clause. No one should talk about the idea until it is reduced to writing. Do not disclose the idea or share it with colleagues outside of this team which could lead to it being copied. Remember that if you talk about your idea and other people add to this idea or copy it, the fact that it was your original thought is lost and there is nothing you can do about the copying. Make sure your team understands that the idea is confidential. Uninformed employees can ruin a competitive advantage by disclosing ideas and secrets.

· Keep good records of your meetings. You may need these to back up a copyright claim or defend an infringement claim.

· Hold your cards close to your chest and only give your client's enough information to win the work. Don't disclose all your secrets, making it easier for them to copy you.

· A Confidentiality and Non-Disclosure Agreement should preferably be signed by anyone you are pitching the marketing idea to. If they don't sign it, they don't get to see it.

· Denote your ownership of any written material published, with a small copyright marker i.e. © or the word "copyright" and the year of publication.

· Employment contracts with your employees should make it clear that the business owns any IP the employees develop. Remember Vodacom's "Please Call Me" case? You want to avoid this type of litigation.

· Take assignment of IP when using an advertising agency to ensure that your business owns the IP the advertising agency develops. Many people are under the mistaken impression that if you pay the advertising agency, you own the IP.

· Put a social media policy in place to avoid trade secrets from accidentally leaking through your social media channels and update them regularly.

· Make sure that you have Terms and Conditions (Ts & Cs) in place and more importantly make sure that they are up to date to account for recent changes in the law such as the implementation of the Protection of Personal Information Act. Ts & Cs are the rules and guidelines that your client's or users of your website or mobile application must agree to and adhere to in order to do business with you. These will give you the legal backing to deal with infringers. Your Ts & Cs should always include an IP clause which will not only act as a deterrent against potential infringers but, will assist you in taking action against those infringers.

To read the article, visit page 22 of our August issue:

Join us for Part 3 next month for ideas on how to monetise the IP that you have taken your time and money to protect.

Bernadette Versfeld

Webber Wentzel

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