The advert below featured on Linkedin yesterday together with an
article entitled "Dove uses Photoshop Trojan Horse to shame
potential body-shamers". It is the story of Dove's
viral message in its "real beauty" campaign but it is
also a reminder of how a trade mark is able to have economic value
that is independent of its traditional origin function, why trade
mark laws need to have effective provisions to protect this value
of the trade mark and also, whether manipulation of adverts is
contrary to Advertising Standards Authority ("ASA")
codes, or should be.
The advert cleverly and even ironically illustrates how brands
are now so much more than a name identifying the origin of a
product or service. In this example DOVE represents a cause that is
communicated in a very clever way. For those that identify with the
cause (just about everyone who feels inadequate paging through a
magazine, I would imagine) will now (hopes DOVE) identify just as
powerfully with the DOVE brand. The fact that DOVE is a beauty
brand makes the communication very powerful and perhaps ironic too;
historically DOVE itself must have been guilty of a touch up or
two, or at least its owners have.
From a trade mark law perspective, it highlights the so-called
dilution provisions of trade mark laws. These are the provisions
that enable a trade mark symbolising a brand to be protected
against unfair advantage and detriment, absent confusion. For
example, a canny marketer could use the DOVE trade mark in relation
to unrelated goods, say cars (avoiding confusion), but still take
advantage of the cause ("real beauty") now represented by
trade mark, and hence the advertising goodwill in the mark.
Similarly, if the mark DOVE was bid on as a keyword for a breast
cancer product, then potentially such use could affect the economic
value of the brand, DOVE.
In some instances it is necessary to show some form of economic
loss (interpreted by many to be lost sales) to prevail in a case
using the dilution provisions or under unlawful competition. The
campaign demonstrates the potential for the economic loss to be
simply, the recognition that harm could be caused to the
advertising or investment function of the brand which takes a
considerable amount of time and money to develop. Once a brand
represents a worthy cause, diversification and licensing become
infinitely easier, thereby increasing the value of the brand.
The ASA code in South Africa protects against misuse of general
advertising goodwill and against imitation (absent confusion) and
so provides a form of protection too. The advert also reminds me of
article penned by a colleague of mine. Here the author
considers the manipulation of advertising images in food and beauty
publications, and whether they are contrary to the ASA code as
being misleading. The position is that consumers are unlikely to be
misled but it is a question of degree.
There has been much discussion in the media regarding the use of virtual private networks (VPNs) in the United Arab Emirates (UAE), triggered by the recently announced Federal Law No. (12) of 2016 (the Amendment), which amends Federal Decree-Law No. (5) of 2012 on Combating Cybercrimes (the Law).
Google, Facebook, Twitter, WhatsApp, Zynga, Airbnb, Uber etc etc. These are all companies that have come from nowhere and are now market leaders in an increasingly mobile and digital world.
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