Intellectual Property Rights in Advertising
Michigan Telecommunications and Technology Law Review, Vol. 12, p. 189, 2006
76 Pages Posted: 9 Mar 2007 Last revised: 27 Sep 2008
Utilitarianism provides the primary theoretical justification for intellectual property protection. This Article considers whether copyright protection of advertising and trademark protection of slogans has a satisfactory utilitarian justification. Utilitarian theory may not justify strong copyright protection of advertising. Many advertising works will likely be produced regardless of copyright incentives. Even if copyright does provide some incentive to create certain advertising works, it is unclear whether the government should encourage the creation of advertising. An increase in advertising triggered by copyright protection will not necessarily result in a net social benefit. The best reason to continue to protect copyright in advertising is the cost of eliminating advertising from the subject matter of copyright.
Utilitarian theory may also fail to justify trademark protection for slogans. When firms include slogans in advertising or on product packaging with the brand name, any additional source-identifying information provided by the slogan is usually cumulative and unnecessary. As firms can and do use product names and other marks to identify and distinguish their brands, additional trademark protection for slogans likely provides no significant incremental reduction in consumer search costs. Moreover, removing trademark protection for slogans should not decrease the incentive to manufacture products of consistent quality because consumers can still use product names to identify brands. Any public benefits of protecting intellectual property rights in advertising are likely outweighed by the costs, which include harm to the free flow of commercial information. Legislators should therefore consider reducing copyright protection of advertising and eliminating trademark protection of slogans.
Keywords: Advertising, Intellectual Property, Copyright, Trademark, Advertisements, Slogans, Utilitarian, Economic, Incentives, Bleistein
JEL Classification: K00
Suggested Citation: Suggested Citation