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Trademarks, digital marketing: Key issues


With the advent of the internet, there are no products or services today that are not being advertised, at least, or being sold through e-commerce. Electronic commerce is now a global economic giant.

By Rumbidzai Mlambo

According to statistics, retail e-commerce sales worldwide amounted to US$1,86 trillion in 2016 and e-retail revenues are projected to grow to US$4,48 trillion in 2021.

Marketers cannot ignore the fact that digital marketing is now a key component of their day-to-day activities with a global reach at the click of a button. With all this excitement and growth in the marketing industry as a result of the internet, marketers need to be aware of intellectual property [IP] issues as they can face lawsuits from anywhere in the world, thus putting their clients at risk. This article discusses some of the key issues related to digital marketing and intellectual property and how to enforce rights.

In the current knowledge economy, digital products and service delivery are important facets. The knowledge economy thrives on intellectual property rights as they give exclusivity resulting in increased competitive advantage, market penetration, market segmentation and customer loyalty which are all associated with the particular product or service being sold.

Traditionally, IP law has protected intangible property through basic mechanisms including:

1. Copyright– the right to publish or duplicate the expressions of ideas,

2.Patent law – the ability to reproduce or manufacture an inventor’s product,

3.Trademark – images, symbols, words or other indicators which are registered with the government and have become positively associated with a product’s identity in the market.

Now computer-based communication has posed particularly difficult problems for intellectual property, with some basic protection mechanisms being employed. Of particular relevance in the online marketing industry are trademarks and related issues.

Use of trademarks in the digital space

Trademark law is concerned with the ownership of intellectual property which identifies goods or services. Trademark law has recently been applied to the internet naming system through the domain name protection. Domains are unique configurations of letters or numbers which are used to route data, i.e., through web addresses. They have become a standard mechanism for communication with customers.

Domain names identify the origin of a business and its goods and services, hence assuming a role similar to that of a trademark.A domain name may be registerable as a trademark if it is distinctive and it is used in commerce in respect of certain goods or services.

Often, however, domain names consist of generic and∕or descriptive words which are not registerable as trademarks. These descriptive and generic names are selected as domain names to enhance their ranking, but often have shortcomings in terms of enforcement. For marketers, it is important to note that it is a very valuable asset to own a domain name which includes a trademark. It is also important that infringing on trademarks of others or uploading or offering to sell counterfeit goods and services is detrimental to the client or the marketing company itself.

Online trademark infringement can be in different ways such as meta-tagging, deep linking, pay-per-click advertising, the offer of counterfeit products for sale through websites or online auctions and social media sites, banner advertising and framing, search engine marketing abuse, cybersquatting, typosquatting and so on. This often results in the exploitation of brands through counterfeit and grey-market sales.

Marketers should avoid the following

Use of similar names or marks, i.e., in use of names that are similar to registered or well-known marks:

Cybersquatting: a phenomenon where one registers a domain which resembles or duplicates the names of existing corporations and then offer the domain for sale at a price set significantly higher than that originally paid.

Meta-tags: these are HTML statements which describe a website’s contents, where they offer benefits in that they allow search engines to identify sites relevant to topics of their inquiries. It is possible to insert words or phrases which are calculated to provide optimal attractiveness, including material protected by trademark. However, one has to ensure that they do not use meta-tags that are protected as trademarks or well-known marks that do not belong to their clients or have no licence to use.

Keywords: These are words assigned within search engines. Trademark-protected keywords raise infringement issues when the result of the search is not directed to the trademark holder.

Hyperlinks, which take users to areas other than their introductory page, may cause confusion or deprive the target sites of revenue obtained through the selling of advertising. Hyperlinks usually dilute the worth of the trademark.

Counterfeit Goods: offering for sale uploading or marketing goods that are fake and infringing on trademarks and other IP rights of the originator
Marketers should be aware that IP infringement in the digital space constitutes what is known as cybercrime. Such crimes include:

unauthorised use of registered and well-known brands;

sales of counterfeit and infringing goods through trade portals and auction sites;

the creation of false websites that include the domain names, trade names, colour schemes/layout and logos of well-known brands, in order to lure job seekers or candidates for online training schemes, or to misrepresent that the products or services provided through the site are authorised or approved by the rights holder; and

meta-tagging to divert internet traffic with a view to boosting sales and other related issues highlighted above; and the unauthorised offer of copyrighted works for download.

Enforcement of rights in the digital environment

So how does one enforce their rights in the digital environment?

Basically most internet service providers [ISPs] have to comply with take-down policies established in the law after the rights holder issues a notice. Rights holders or authorities have to notify ISPs of infringing or illicit content, which must be removed by the ISP within a certain time limit, e.g., 36 hours of notification.
The digital space has no boundaries. International disputes can be resolved through various mechanisms, for example, the World Intellectual property Organisation (WIPO). The WIPO Arbitration and Mediation Centre exists to resolve commercial disputes relating to intellectual property. The Model Law on Electronic Commerce by the United Nations Commission of International Trade Law provides global uniformity in digital commerce.

In order to ensure your prevent digital infringement

you have to ensure that all your IP titles are protected;

Ensure that you register all the major social media accounts especially those where your product or services are most likely to be infringed to prevent others from registering before you do;

Register key domain names and establish a clear policy on domain name protection (including generic top-level domains) and third-party use of similar domain names;

Establish a monitoring mechanisms to be aware of all potentially infringing activities and to deal with it before it costs the business or client;

Take action against any sort of infringing activities through issuance of cease-and-desist notices, supported by rigorous follow-ups, to safeguard your brands and intellectual property; and

Ensure that you are aware of take-down procedures and requirements of your ISPs, websites and social media sites to remove infringing content.

Rumbidzayi Mlambo is as Intellectual Property Consultant at Muvingi and Mugadza Legal Practitioners. Visit their website on www.mmmlawfirm.co.zw
This article was contributed on behalf the Marketers’ Association of Zimbabwe, a leading body of marketing professionals promoting professionalism to the highest standards for the benefit of the industry and the economy at large. For any further information, visit the website their www.maz.co.zw or contact mazmembership@mazim.co.zw

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