Intellectual Property RightsInterplay of IPR and Digital Marketing

August 1, 20220


Intellectual property rights (hereinafter referred to as “IPR”) plays an important role in protecting and shaping marketing strategy of many growing companies, and it involves a collection of processes, products, and communication offers that have value for clients, consumers, or society in general. Marketing produces intangible assets, which can be protected by IPR. In reality, the protection of intangible assets in a marketing campaign is the first significant feature of IPR effect on marketing strategy.

With the recent developments in digital transformation and the worldwide expansion of the e-commerce business, digital advertising is more important than ever. Businesses were motivated to advertise their goods and services while developing wants and investing in advertising resources as a result of “market saturation, globalization of commerce and manufacture, and the avalanche of information distributed without boundaries”. Advertising is now regarded a product and service in itself.

Given the significant efforts and costs invested in building brand loyalty, addressing legal difficulties and IP problems is critical in the digital market. Prima facie, the situation appears straightforward, since many easily and freely accessible products and services are the sole property of an individual or organization, together with any accompanying intellectual property rights. However, a variety of IP difficulties may be recognized in terms of creativity and advertising, specifically with regard to marketers’ efforts to preserve their distinctive and original ideas as IPR.


While the digital market has given new marketing channels and possibilities for large cash generating, it has also created a dilemma that most IP regulatory regimes had not anticipated. Traditionally, IP property holders secured their rights by prohibiting third-party access to their inventions unless specific conditions were met, which might include the payment of a premium or fee.

However, in the digital era, the actual issue is the capacity of an IP right holder to identify third-parties in possession of protected content and govern the manner in which such property is used by the same third-parties. This is complicated further by the increasing number of pirates who profit commercially from the unauthorized use of copyrighted information.

The main question is not whether piracy is unlawful; it is finding the people who are behind such acts. If such people are not identified since they frequently disguise their traces and use a variety of technological and administrative procedures to remain undetected, piracy will continue unabated.

Newsletter mailings and e-mail marketing are a fixed part of the online marketing universe. Basically, the principle that processing is prohibited but subject to the possibility of authorization also applies to the personal data which is used to send e-mails.

Under the General Data Protection Regulation (hereinafter referred to as “GDPR”), processing of data is only allowed if either the data subject has consented, or there is another legal basis. This could be, for example, preserving the legitimate interest of the controller to send e-mail marketing.


Digital marketing communication and strategy include new commercial names, logos, domain names, product names, slogans, flyers, white papers, brochures, newsletters, landing pages, and website designs. Whether or not they are covered by IPR in the specific situation will depend on whether or not they meet the appropriate standards for protection. However, in principle, they can all be safeguarded. The extent and mode of protection will change depending on the type of asset in question.

A successful advertising campaign sometimes requires a large investment of both time and money. Competitors are likely to try to ride on the creativity, talents, and efforts of an innovative organization. Businesses must consequently design proper methods to safeguard their advertising creations through the use of the legal mechanisms available in the IP system, such as the following:

i. In countries where this option is available, registering the advertisement and other copyright-protected work (including a website) with the national copyright office.

ii. General notification to public that advertising content is legally protected by copyright laws.

iii. Trademarks are often made up of words, numbers, and/or logos. However, technical advancements have resulted in the creation of new and more innovative markings. Animated picture markers and noises are particularly well suited to Internet advertising.

iv. A trademark and a domain name are sometimes closely linked. Customers are disappointed when they can’t readily discover a company’s website, and companies face monetary and reputational losses when customers wind up on a competitor’s website. As a result, it is worthwhile to register trademarks as domain names before someone else does.

v. Usage of trademarks consistently and correctly in all promotional materials like right trademark font, colour, size, and other elements. This will increase the trademark’s uniqueness and worth over time, as the same would become a ‘well-known’ trademark gradually, which would make it easier to recognize for the customers.

vi. Acquiring patents for the innovative advertising technology and online digital market methods where such protection is available.

vii. Any highly confidential information that provides a competitive advantage to a company, such as sales methods, consumer profiles, supplier lists, manufacturing processes, marketing plans, a great idea for an advertising campaign, and so on, can be protected by trade secret law or unfair competition laws. However, if a trade secret is mistakenly exposed to the public, it is no longer feasible to secure the data.

viii. In order to make its digital presence valued, companies appoint well-known celebrities as their brand ambassadors or use such celebrities to give a face to their product marketing.

A celebrity image may capture the attention of customers and generate a sense of high value and credibility for a product or service. However, companies must exercise caution if they want to exploit a celebrity’s identity or image in advertising. Privacy and publicity rights protect an individual’s name, face, appearance, voice, and likeness in many nations.

The Right to Privacy grants a person the right to prevent others from using their picture in specific ways. The right to publicity acknowledges that a person’s image has an economic worth that is considered to be the result of the individual’s own labour, and it grants each person the right to exploit their own image.


Adopting any of the six Creative Commons Licenses (CC) is a much easier approach to manage one’s content. Each of these licenses imposes various constraints on customization, dissemination, and reproducibility. These are classified as follows:

1. Attribution: This type of license is the least restrictive and most flexible. It allows content producers to share, remix, adapt, and expand upon the owners’ work commercially as long as they credit the original owner solely for the original invention. As a result, anybody wishing to utilize a content creator’s original work protected by the aforementioned license must credit and mention the creator’s name.

2. Attribution Share – A – Like: This license basically permits content creators or producers to use the work of others as long as they use the same copyright terms as the original creator of the material. It indicates that others must credit the author and grant permission for the invention to be freely disseminated, remixed, altered, and built upon. Anyone wishing to utilize the content controlled by this license is thus barred from adding any extra licensing limitations in the sharing of the work.

3. Attribution No Derivatives: This license allows anybody to commercially reuse the information; however, the scope of use is limited. Because the changed material is not distributable, it cannot be remixed, adapted, transformed, or built upon. One cannot rearrange or edit a video for example, under this license. However, one can share or reuse it on another website as long as proper credit is given to the original owner by including a link to the license.

4. Attribution-Non-Commercial: This license allows people to remix, edit, and expand upon the original work for non-commercial purposes while acknowledging the original artist. The licensee, on the other hand, is not required to license his derivative works under the same terms and conditions.

5. Attribution Non-Commercial: Under this license, anybody may remix, change, and adapt the work while crediting the original artist and using it for non-commercial purposes only. In addition, any work developed from the original content must be licensed under the same conditions. Non-commercial applications include actions in which the content is not monetized and may earn little or no profit. For example, the content cannot be used to pursue a project including paid advertising or the sale of products with the content written on them since this would result in the content being commercialized.

6. Attribution Non-Commercial No Derivatives: Under this license, the content made accessible may be reused and shared; but, it prohibits any sort of amendments, remixes, or adaption of the information in any other form. Furthermore, practically, such licensed content cannot be used in today’s business world. It is the most restrictive form of license compared to the others and is frequently chosen when the author intends to use the work under this license officially and principally for commercial reasons.


In today’s era, Digital Rights Management (hereinafter referred to as “DRM”) systems also known as Electronic Rights Management Systems preserve copyright by identifying and securing material, regulating access to the work, maintaining the work’s integrity, and assuring payment for access.

DRM methods prohibit unauthorized individuals from accessing such material. Access is restricted via a user ID and password, as well as licensing agreements. Technical protection measures (hereinafter referred to as “TPM”) are another way to safeguard digital assets. These technologies enable publishers to secure and safeguard their material, such as music, text, and video, against unlawful usage. DRM technology can be used by an author to charge a fee for the use of his or her work. TPM and DRM technologies are being used more and more to sell and distribute material over the Internet.

1. Cryptography Protection

Cryptography is the oldest technique for ensuring the security and privacy of information transmitted through networks. This entails scrambling or encrypting the information to make it unreadable or unintelligible language that only the genuine user can decipher or decrypt. Cryptography, on the other hand, only secures the work during transmission or dissemination. It provides no protection after the work has been decoded.

2. Digital Watermarking

A digital watermark is a digital signal or pattern that is embedded in a digital document. It is comparable to the electronic on-screen logo used by television broadcasters. To identify the work, a unique identifier is needed. The message may contain information about ownership, sender, recipient, and so on, as well as information about copyright license. A preset algorithm can be used by the lawful user to erase these watermarks. Watermarking technology is often used to safeguard multimedia content.

3. Digital Signature Technology

A digital signature comprises the sender’s and/or receiver’s identity, date, time, any unique code, and so on. This data can be included in virtual content. This digitally stamps and binds a software package in preparation for transmission to a specific consumer. Digitally signed fingerprints ensure the validity of documents and prevent illicit duplication.

4. Electronic Marking

In this process, the system produces a unique mark that is linked to each document copy automatically. This strategy is used to safeguard IPR as well as in electronic publication when papers are printed, copied, or faxed.


Marketing requires imagination along with some experience about the relevant market. The Internet and other technology developments have helped the proliferation of new marketing tactics through imagination. Advertising is a strong medium of influence, but it also has the potential to be abused. This is why advertising methods are strictly controlled in many nations.

Businesses may need to comply with a variety of rules and regulations when beginning an advertising campaign, such as those controlling labeling, the usage of children, sensitive product categories such as cigarettes and alcohol, broadcast time limits, and so on. These rules vary by country and based on the substance of the advertisement.

In digital market, it is difficult to draw a boundary line between what is permissible, to what extent and what is infringement. Small scale violations which do not conflict with owner’s rights may be accepted as a part of fair use. It is difficult to judge, comprehend fair use, access and control the infringement of copyright law.

It is almost impossible for a copyright owner to know which person used his/her work. In this context it is necessary to modify the copyright law. Digital content creation is a trending industry with lucrative returns, and since the veracity of a content creator lies in the content only, it is understood that creative content of all kinds must be protected from imitations and illicit copying.

There is the traditional IP route; however, where the expense and strategy permits, the alternate course of licensing may also be preferred. As a result, knowing the IPR and licenses that govern the digital environment is critical for all content providers.

– Team AMLEGALS assisted by Mr. Aum Purohit (Intern)

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