Question

Topic: Advertising/PR

Publication Duplicated My Ad For A Competitor

Posted by Anonymous on 6/5/2014 at 1:30 PM ET 25 Points
My company has successfully advertised with a nationally known advertising publication for many years, spending about 80K a year. This month we were shocked to discover that our ad was copied exactly for our competitor in the same issue of the publication. Only the company name, logo, phone number and photo was changed. The ad copy was copied verbatim, and the layout is exactly the same. Our Account Exec says we don't have a copyright on the copy, so they can do anything they want. Personally, I think this stinks. Do I have any recourse???
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RESPONSES

  • Posted by Peter (henna gaijin) on 6/5/2014 at 2:04 PM Accepted
    Well, once recourse would be to pull all the ads from that publication. An $80K hit should sure catch their attention. But the downside is that it also means you won;t be advertising there, where I assume there are benefits to the ads.

    I would think that ad copy is copyrighted. In particular, if the ad copy had a tag line or slogan built in. Would require a copyright experienced lawyer to say for sure, though, and at least up front you will have to lay out money to hire one (perhaps could get reimbursed from the competitor if you win the case).
  • Posted on 6/5/2014 at 3:05 PM Accepted
    I would probably have an attorney send a stern cease-and-desist letter and rattle the saber a bit. And if you can live without that magazine cancel whatever advertising you've scheduled.

    At a minimum this is highly unethical. I assumed that advertising was tacitly copyrighted, but maybe not. I don't believe you need to run a (c) copyright notice to have copyright protection. But then I'm not a lawyer either.

    There's also the issue of whether the blame goes to the competitor or the magazine, or both.
  • Posted by Jay Hamilton-Roth on 6/5/2014 at 3:59 PM Accepted
    What does the publisher have to say about this?
  • Posted by Gary Bloomer on 6/5/2014 at 6:31 PM Accepted
    Did your company create the copy and the ad, and did you submit your ad to the publication as a PDF or as hard copy? If you did, you retain copyright. If you commissioned the publication to create the ad on your behalf we're looking at a different picture.

    Unless you have a contract that explicitly details that the publication's creative can NOT be used in
    any way, for any purpose, for any advertiser—that the material is exclusively yours—you may not have much of a case.
  • Posted by saul.dobney on 6/6/2014 at 3:02 AM Accepted
    Copyright will definitely cover the copywriting and may cover the format if there is sufficient similarity (eg TV show formats and theatre productions are protected). If the advert has been displayed with your name enough you may have a case for passing off which is a form of unregistered trademark protection - for using say a slogan or tagline that has become associated with your business. Lawyers will be able to advise you.

    The only caution would be if you have something very generic - "the best X in Y" it's unlikely the protection would be that strong. The more it is specifically about you, the stronger your case.
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