IT has been said that “the man who stops advertising to save money is like the man who stops the clock to save time”. Whether you operate a one-man shop or oversee a conglomerate, advertising is indispensable to the success of your business. In today’s crowded marketplace, advertising ensures that your business stands out amongst the competition.

Every businessman (and woman, as the case may be) should possess some knowledge of the various statutes and regulations that govern the advertising industry so as to avoid costly pitfalls. Outlined below are a few principles to bear in mind when launching your advertising campaign so as to ensure compliance with the law.

Be truthful

Ensure the information conveyed is accurate and that all advertising claims are capable of substantiation. The law expressly prohibits false or misleading advertisements. The fact that you may not have intended to mislead or deceive is irrelevant. Once the advertisement creates a misleading impression in the consumer’s mind — for example, as to the price, value or the quality of the goods or services-there is a breach of the law.

Advertisements ought not to be framed so as to abuse the trust of consumers or to exploit their lack of experience or knowledge.

Identify the copyright owner and get permission

If you wish to use material in which copyright subsists (for example, photographs, videos, or sound recordings), it is important to identify the owner of the copyright, bearing in mind that the original author or the performer may not necessarily be the owner.

Copyright infringement is serious business, if you use material that belongs to another, the owner may come down on you with copyright laws soundly on his side.

Celebrity advertising

The unauthorised use of a celebrity’s image in an advertisement constitutes the tort of misappropriation of personality, for which you can be sued! The Supreme Court has recognised that a celebrity has an exclusive right to use his name, image or likeness. This means that if you wish to use a celebrity’s image to promote your goods or service, it is imperative that you obtain the individual’s prior consent.

Be careful of the word free. You may not describe a product as being “free” if there is a cost to the consumer other than the cost of delivery, freight or postage. If such charges attach, the advertisement should contain a clear statement to this effect.

Also, if your advertisement promises a “buy one, get one free” deal, you must be able to show that you are unable to immediately and directly recover the cost of supplying the second product. There should be no attempt to recover the cost, by increasing the usual price of the product or by imposing of packing or handling charges or by inflating the true cost of delivery.

Protect your creative genius

Several elements of an advertisement may be protected under copyright law, including any written materials, music, photographs, or videos. In fact, an original advertisement may be protected in its totality. Further protection may be sought under trademark law, for example, you may opt to register advertising slogans.

Prior to launching any advertising campaign, it may be prudent to consult with an attorney to ensure that your activities do not run afoul of the law and to ensure that all your interests are protected. The above principles are only a few of the many considerations that arise. On April 27, 2011, Myers, Fletcher and Gordon in conjunction with Jamaica Chamber of Commerce will be hosting a seminar that will further explore the multitude of legal issues in advertising. Come and arm yourself with the requisite knowledge to ensure that your advertising campaign gets off on the right foot!

Kerry-Ann Heavens is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial and Intellectual Property Department. Kerry-Ann may be contacted via e-mail at kerry-ann.heavens@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.