You unfortunately cannot file a trademark or copyright registration on an entire advertising campaign or marketing strategy; however, you can protect through copyright and trademark law various elements of an advertising campaign or marketing strategy.
Copyright law protects original works of authorship fixed in a tangible form of expression. Section 102 of the Copyright Act provides that copyrightable works include the following:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
Thus, in the context of an advertising campaign or marketing strategy, you would be able to protect through copyright law any original work of authorship describing the advertising campaign or marketing strategy. You would also be able to protect through copyright law any pictorial or graphic works created for the advertising campaign or marketing strategy, such as logos, advertisements, and other designs. Moreover, in the event that any motion pictures, audiovisual works, and sound recordings are created for the advertising campaign or marketing strategy, those works would also be protectable by copyright law.
In contrast, trademark law protects logos, slogans, names, sounds, and colors distinguishing goods and services. Thus, any logos, slogans, names, sounds, and colors created in the advertising campaign or marketing strategy could potentially be protected by trademark law.
What aspects of an advertising campaign or marketing strategy fall outside the scope of trademark or copyright law?
Section 102 of the Copyright Act states the following:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Thus, ideas related to the advertising campaign and marketing strategy, concepts related to the advertising campaign, and systems related to the advertising campaign and marketing strategy are not protectable by either copyright law or trademark law. However, to the extent that such items constitute know-how related to the campaign or strategy, they may be protectable by a well-drafted confidentiality agreement protecting such items.
In trying to protect your advertising campaign or marketing strategy, my advice would be to retain an attorney in your jurisdiction to work with you to identify aspects of the campaign or strategy that might be protected by copyright or trademark law, and also to have that attorney draft a custom nondisclosure agreement to protect any aspects of your campaign or strategy that you want to keep confidential. One the protectable elements of your campaign or strategy have been identified, you will be in a position to work with your attorney to decide how best to protect your rights in your intellectual property.
-- Kristie Prinz
