Drugi jezik na kojem je dostupan ovaj članak: Bosnian
By: Kamilo Antolović, Permanent Judicial Adviser for Advertising & Marketing, Croatia
The constant struggle: to create or to copy? To create or to plagiarize? To create or to imitate?
Today’s products are becoming more and more similar, and it’s increasingly difficult for the consumers to notice the differences and real benefits of one product compared to the competitors, and thus the communication (advertising) of related products is becoming more and more similar.
There are therefore abuses in the field of intellectual property, ie the use (copying, plagiarizing, imitating, adapting, stealing, unauthorized use …) of others’ works in advertising, where theft is almost “implied”, but it is important not to get caught in the act. It’s not about theft of ideas (ideas, procedures, etc. cannot be protected or copyrighted), but concrete works: creative solutions, designs, logos, ads, videos, labels, synopsis, etc.
Asked to comment on the latest example of this, the spot for water Mattoni (Czech Republic) and spot for water Lejla (BiH), based on the regulations of the established standards (Laws) and good practices of the advertising industry (Code of Conduct) in the Republic of Croatia, I give my opinion on the content and assessment of these messages (video spots), for which there are grounds for suspicion that there was a violation of someone’s intellectual work. *
What do the Laws and Codes say?
CODE OF CONDUCT IN ADVERTISING
Standards of the code on advertising (ie. the one of the Croatian Association of Communications Agencies – HURA) state:
“…market communication should not imitate communication of other marketers in a way that might lead to wrong conclusion or mislead the consumer, for example through artistic solution, copy, slogan, image processing, music or sound effects…”
The Law on Unauthorized Advertising stipulates the conditions of comparative advertising and prohibits the following:
“…if they lead to equation between traders, marketers and their competitor, or between goods or services, stamps, trademarked names, or other distinguishing marks of an advertiser and their competitor.”
*the concrete case relates to the imitation of a video ad.
How to assess the abuse of intellectual property – copyright on the basis of imitation in the example Mattoni-Lejla?
If copying is undoubted takeover of another’s intellectual work, and plagiarism is a similarity with some common elements, imitation is a similarity of an intellectual work visible at first glance, and which could lead to consumer confusion and consequently to a change in purchasing behavior.
How to assess whether one video spot is simply inspired by the other, or whether there’s a suspicion, due to similarity, that there was a violation of someone’s intellectual property (ie copyright)? In this case, it can be assessed according to following criteria:
a) Same nature of the product; these are same or similar products, or rather these are products that meet the same need of the consumers in the market.
b) Time of creation; time of launching the intellectual work – video spot for Mattoni – was done earlier, and precedes the video spot for Lejla (according to data available) by approximately more than one year.
c) Target market; marketers (products) have the same or similar target groups, and can compete with each other in the respective product category (if they are both present on one of the observed markets, or in a third market)
d) Distribution channels; if the observed products are present in the same channels of distribution, especially if they are placed together at the point of sale, there is an increased possibility of misleading the consumer, both in communication and in purchasing sense.
e) Distinctiveness of work; observed from the standpoint of an ordinary consumer, there is obvious similarity between the compared works, because to style and tone of communication point to similarity.
f) Time of airing; the time of launching (ie. campaign) of the intellectual work – video ad, both the original one and the one suspected of imitation. The longer the time difference of communication, the lower the possibility of confusion due to weakening of memory and influence of the ad.
g) Confusing the message recipient (the Code); an average recipient of the message (average consumer) in accordance with the presented elements (product, niche, style and tone, target market, effects…) could be confused given the difficult perception of key distinctions-similarities of the compared works, and hence (due to difficult making of distinction and possible resulting confusion) if the products were in the same market, they could misidentify the product, change purchasing behavior, which may bring damages to the business of the creator of the original video ad.
Using these varorization elements, but also other parameters, undoubtedly, with the respect of: 1. the very nature of advertising (people do not follow the media for advertising, and often avoid them. Influence of messages and advertising on the average recipient, even in case of potential misuse of some intellectual work , is often overrated), 2. Observations in the context of the average consumer (knowledge and experience of an average consumer in a community and the influence of advertising on them), and 3. Similarity of the style and the tone of video ads, there are arguments in support of the established assessment that it is the case of imitating, and hence violation of the legal and ethical standards of the advertising industry.