Olufola Wusu

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“You now have to decide what ‘image’ you want for your brand. Image means personality. Products, like people, have personalities, and they can make or break them in the market place.” David Ogilvy (Top advertising executive, 1911-1999)

A #Sterling Tweet?

“Choose a partner that takes you higher”
Sterling Bank on one bright Friday, posted a creative tweet, that elicited animated responses from other banks on twitter and other social media.
The said tweet, which went viral, read as follows, “Shoot for the moon, become a star – it’s the least you deserve.” The graphic illustration in the tweet, showed a customer, ostensibly on a space ship shooting for the moon. The graphic illustration ostensibly made visual allusions, to the brand identities, of rival banks, this triggered off a flurry of responses, leading to #BankWars on social media.

Catchy Adverts?
A few years ago, there was a deluge of adverts by telecoms companies, which greeted the Nigeria Communications Commission NCC announcement, of the launch of the Mobile Number Portability Scheme (MNP). This turned out not to be an indication, of the first few shots of an impending brand war.

Sometime ago…
When the MNP started, MTN had this catchy advert. In the Saka clip, we see him wearing a certain colour when he backed the camera but the moment his outfit changed to yellow he came alive in the clip.

Prior to this, a certain telecoms company ran an ad, a man told people what bonuses they would earn by joining this network, a man in a yellow face cap later came along…

In another advert there was a woman driving a car, who complained about her network, when she moved to “greener pastures” she seemed happy, they later showed a car painted in a bright primary colour being pushed by 3(three) men; a lucky coincidence perhaps?
In an advert a man moved houses, his house number and colour are often used by a certain network. In a certain advert a man stands beside a telephone number starting with “080” asking customers to switch to his network.

The tweet by #SterlingBank, did not only break the internet but it may have broken new frontiers in advertising and branding in Nigeria with Banks, taking direct and indirect swipes at their competitors.

This paper attempts to examine the Intellectual Property ramifications of advertising in #BankWars /brand wars.
Possible IP rights in Advertising/Branding
If your advert/brand is engaging and innovative, other companies may want to borrow a “leaf” from you with or without your consent, so be prepared to register, trademark, monitor and license your IP rights if the need arises.

Common IP assets in advertising/branding include; creative content, such as written material, which may be protected by copyright; advertising slogans and sounds may be protected, by copyright/trademark laws; business names, logos, and other signs used in advertising, may be protected as trademarks; your website design is likely to be protected by copyright; software may be protected by copyright; unique packaging, like the shape/contour of a product, may be protected as an industrial design.

Can You Use a Celebrity’s Name/Image?
Licenses protect proprietary rights in personal brands; a celebrity has the right to determine who can use his image and likeness to market their goods. Do you plan to use a celebrity’s name for your promo? Then you need to get express consent in your agreement.

Start of a Colour War?

Some marketing research indicates that colour conveys nearly the same amount of brand information as words. In the above mentioned telecoms adverts, the companies used the colours of competitors in their own adverts, often in indirect allusions. The importance of colour as a brand identity has recently been emphasized, with telecoms companies taking swipes at competitors using colours often associated with them. (Did you notice the white horse, the blue elephant, the orange cube and the boy on a red skate board in the image of the certain tweet? ) It is debatable if the Trade Marks Act, Cap. T13 Laws of the Federation of Nigeria 2004 evinced the possibility of colour being used as a trademark; also questionable is the premise that the said Act protects distinctive colours that have become strongly associated with a particular product or manufacturer.

As the colour war brews in the “brand arena” only time will tell whether the use of colour in brand wars will spill over into our Court rooms in Nigeria.
Meanwhile, this edition of the #BankWars may have been brought to an abrupt end, by the Central Bank of Nigeria…

Can you use a Competitor’s Trademark in Your Advertising?
The above mentioned adverts featured the use of colours and the likeness of particular brands…

A trademark gives the holder the exclusive right to use it and stops all others from using it.
However, does a trademark give its holder a monopoly on the word, phrase or shape? It might be that, only commercial use of the trademark for the relevant classes of goods as evinced by our Trademark Act/can be restricted by the trademark holder.
It is a bit doubtful that non-commercial use can be prevented, except in cases of infringement.
In most countries, using a competitor’s trademark in the course of advertising does not amount to an infringement in as much as such use complies with honest practices in business and is not harmful to the distinctive character or reputation of the trademark.

Should you Compare Your Products and Services with Those of Competitors?
If yes, please exercise caution in the following situations; as Derogatory or defamatory comparisons are not permitted. Comparisons that are likely to cause confusion with the competitor’s products or services are not permitted. Deceptive comparisons are likely to constitute infringement…
Coca-Cola and Pepsi challenge each other in “taste tests”, the mobile phone companies in Nigeria compare each other’s tariffs/services, and drug companies challenge the effectiveness of each other’s products.

Legislative Paradigms for Comparative Advertising
Different Countries have taken different approaches to comparative advertising.
Legislation in countries, like America support comparative advertising, it is even believed in some quarters that “truthful comparisons” inform customers and engender healthy competition. Some countries in Europe, allow comparative advertising, but have clear requirements for it to be considered legitimate.
Other countries simply prohibit comparative advertising, sometimes in general, or limit it to certain products.
Finally some countries are seemingly oblivious of/not concerned about comparative advertising in their legal regime. Can you guess what category we may belong to?

Infringement
Where the advert violates the trademark or IP of another company, a lawsuit may follow unless both parties agree to settle out of Court.
Possible Litigation-Deception or a Mere Puff?
A 26 year old man used a certain “Deodorant” for seven years, but was unable to attract beautiful women! Although the products advertised allegedly suggested, that “the products helped men attract beautiful women”. The said man filed a case against a Fast Moving Consumer Goods Company, which owns a certain brand of grooming products for men, for ‘cheating’ and causing him ‘mental suffering’. Vaibhav Bedi, the petitioner, also surrendered all his used, unused and half-used deodorant sprays, perfume sticks and roll-ons, anti-perspirants, aftershaves, body washes, shampoos, and hair gels to the Court, and demanded a laboratory test of the products and narcotics test of the brand managers of the said company!

Conclusion
Can we say our present legal regime is ready for extreme comparative advertising? Are the rules of engagement clear for brand wars? Does our Trademark Act envisage brand wars?
Different countries have diverse attitudes when it comes to comparative advertising, one is tempted to think that some regulation would be in order to prevent possible abuses on the part of brand owners and at the very minimum guarantee the possibility of customers being reliably informed by “truthful comparisons” in adverts by companies constantly jostling for their attention.

Olufola Wusu is a Commercial/Oil and Gas and I.P. Lawyer with Megathos Law Practice based in Lagos.

Olufola Wusu Esq. © 2018

www.olufolawusu.com

Olufola Wusu is noted for his “dynamic practice” and “commercial acumen”. He is praised for his “first-rate skills” in assisting clients

 

 

Image Credit: Sterling Bank