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Eric Swetsky's legal column published in Marketing Magazine, October 2001
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An Ounce of Legal Prevention
Practical tips for ad agencies and marketers on how to stay out of trouble
There are many ironies in life, and surely this has to be one of them. Advertising agencies work with passion to pitch and ultimately win a new client. Then they lose the client because of a legal hiccup. One recalls the words that Shakespeare placed in the mouth of Brutus: "How many times shall Caesar bleed in sport" (Julius Caesar, Act III, scene i, line 114).
When all is said and done, you get yourself into legal difficulty in either of two ways -- through no fault of your own, or because you didn't pay attention to the legal details. Nothing can prevent the former. Why not try to prevent the latter?
Copy review
The purpose of copy review is to try to avoid a factual inaccuracy, or a misleading representation caused by placing too much spin on a representation. Not only could this expose your client to a conviction under the "misleading advertising" provisions of the Competition Act, but your client could be exposed to legal proceedings initiated by a competitor if comparative advertising is involved.
Its not enough to try to make your client responsible for the copy by having them sign off on the work. First, the client will still fire you. Second, you may still be legally accountable for the copy: the Federal government's Commissioner of Competition once stated in a directive: "…where the active involvement of the agency in initiating, conceiving, shaping or implementing…(an) advertisement is directly related to that portion of the...advertisement that is the subject matter of the alleged offence," the agency is not able to invoke certain defences otherwise available to them under the Competition Act.
The ounce of prevention is simple enough -- nip it in the bud before it occurs. If an agency has a system in place to catch errors, problems will inevitably be caught, and for those that are not caught, the agency can argue that they nonetheless acted "diligently." For example, the agency could establish an internal review process for all advertising copy. That internal review system could have a member of the creative staff who is independent of the file review the ad. If that person is uncertain about the impression created by a representation, or whether adequate tests have been performed to support a product performance claim, the copy could then be revised, or it could be passed along to a lawyer for a second point of view.
If the system is to work, it must not only be applied consistently, but it must be one that is followed from the top of the organization down to the bottom, applying to the agency's President just as much as to a junior copywriter.
Trademarks
A few years ago, trademark law was only a minor branch of advertising law. Today, it is a weighty subdivision because marketers now aggressively use their trademarks to distinguish their products and services from those of their competitors. With increasing frequency, competitors are not standing idly by when another uses what they perceive to be a confusingly similar trademark.
Simply stated, it is unforgivable in this day and age to come up with a new brand name, a new slogan or the like, and not have a trademark availability search done at the creation stage. A "quick and dirty" search on the Internet is not enough. It must be a proper search conducted by a professional trademark searcher, and that search must then be interpreted by a lawyer. There are so many nuances to trademark law that it would make your head spin, so don't pretend that you are capable of doing the trademark search yourself, because you're not.
Copyright law
It is very easy to get your ideas from another's work. It is not illegal to do so because all ideas are in the public domain, meaning that anyone is free to use them. What is illegal is using the way that another has expressed that idea. Here's the rub. The line is so fine between what constitutes using another's raw idea or using the way they have expressed that idea, that borrowing an idea can border on the foolhardy. The easiest way to prevent an allegation of copyright infringement is to independently come up with your own idea. You just might win an industry award for creativity in the process.
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