Intellectual Property in Advertising

The graduate qualification paper presents a comprehensive analysis of the theory and practice of advertising activities in the context of intellectual property law: the concept and main legal features of advertising were studied, topical issues of differentiating advertising from other types of information were identified, a brief overview of the types of intellectual property in accordance with the current legislation was given, the main provisions concerning the emergence and termination of legal protection for the results of intellectual activity and equivalent means of individualization were considered, features of advertising as intellectual property were considered, the most widespread violations in the use of intellectual property in advertising were revealed, judicial and administrative legal practice regarding advertising and intellectual property rights was analyzed, proposals to clarify the theory of advertising activity and increase the efficiency of its legal regulation were formulated. The following conclusions were drawn from the research: the current Russian legislation does not contain a clear legal definition and criteria for defining the concept of “advertising”, which leads to the complexity and heterogeneity of the practical application of the relevant rules of law. Multiple research, that defines advertising as information, as a result of creative activity, a special type of communication or an independent means of individualization, confirms the fact that advertising is a complex, multifunctional phenomenon that combines the following meanings: 1. Advertising (advertising information) as a special type of information distributed to attract the attention of an undefined circle of persons to the object of advertising, the creation or maintenance of interest in it for promotion in the market; 2. Advertising as a result of creative (intellectual) activity, i. e. a direct carrier of advertising information created taking into account the method, form and means of distribution; 3. Advertising (advertising activity) as a type of business activity, which includes a set of activities on the production, placement and distribution of advertising product in order to promote the product on the market and to systematically generate income. The practical importance of such a classification makes it possible to differentiate the functions of the subjects of advertising activities (advertising client, advertising producer, advertising distributor), to establish the limits of their responsibility in assessing the result of each subject’s activity (i. e. the distribution of an advertising product containing advertising information) by regulatory authorities in the presence of signs of offense. The need to clarify the notion of “hidden advertising” in the legislation to avoid different interpretations when using the term “hidden” in judicial and administrative practice in relation to advertising embedded into another product by hidden means was identified. In order to establish a uniform law enforcement of the concept of hidden advertising, the author proposes a more precise wording of Art. 5, Part 9, Art. 5, Part 2, Para. 5 of the Federal Law “On Advertising”. Where there are statutory features, advertising, in whole or in part, is intellectual property and the intellectual rights of its owners must be respected in its production, placement and distribution. The author suggests that the Federal Law “On Advertising” should contain a direct indication of the need to respect intellectual rights (in Art. 5 Part 11) as a possible way to prevent their breach. The paper contains recommendations that can be used in the process of studying the theoretical and legislative framework to improve the theory of advertising as a sub-institute of intellectual property. The author’s position can be used in the development of local regulations by the subjects of advertising relations, as well as by persons whose activities are related to the production, distribution and use of an advertising product.