While copyright infringement is a significant concern for many businesses, it is important that trademark infringement is not overlooked. The third and final most common mistake in this 3-part series about the most common copyright and trademark infringement mistakes is outsourcing advertising to third parties without proper oversight or using trademarked phrases on marketing or advertising materials.
A business must be careful when outsourcing advertising to third parties to protect against copyright or trademark infringement claims. Some companies are hiring third parties to create web sites, search engines on corporate web sites, and create and distribute advertising material. It is crucial to ensure a written agreement with any third parties contains an indemnification provision to protect against any potential intellectual property claims. The indemnification provision should also clearly define which claims are covered, so it may not be interpreted to exclude certain claims.
Some businesses have faced unexpected copyright or trademark infringement claims based on web sites created by a third party. In those instances, an indemnification provision may provide a measure of protection against the claims, but a company may be forced to pay legal fees and expend time and resources resolving the issue. However, proper oversight of third party advertising may have avoided the unnecessary time and expense.
Other businesses have faced liability for using trademarks in advertising or marketing materials without permission. Even though trademarked phrases may be common in certain industries, it is dangerous to use the trademarked material without the trademark owner’s permission.
Companies facing copyright or trademark claims should consult an attorney with experience resolving intellectual property disputes.