By Emma Yates, Head of Intellectual Property at rradar
Creative agencies that lack an understanding of intellectual property rights can leave themselves and their clients dangerously exposed to potential disputes. If a claim arises, the cost is not just in lost time and resources, but also declining client trust in agencies that have spent time creating brands only to discover they are open to legal challenge.
The profession thrives on originality, but what starts as “creative inspiration” can infringe another business’s intellectual property rights. Agencies may overlook when new packaging or logos bear a similarity to existing trade marks or when a client should seek dedicated legal IP advice. After all, they are in the business of being creative, not legal. Legal checks are rarely built into the early stages of branding projects. However, this could potentially lead to costly rebranding or disputes later down the line.
Why protecting intellectual property is a business imperative
Intellectual property is an important asset for any business, helping to distinguish itself from competitors and build consumer loyalty. Businesses can sell or license their intellectual property. And when handled appropriately, it can generate additional revenue. Businesses that do not protect their intellectual property risk having their products copied, market share damaged, and their income potentially affected.
Key misconceptions creative agencies make when it comes to IP
Many businesses look to specialist agencies to develop their branding. But often, I see cases where advertising agencies lack education regarding trade marks. While it is not their job to understand trade mark law inside and out, every creative or ad agency should be aware of trade marks and when they or their client needs additional legal support.
The key misconceptions and mistakes I see creative agencies making are:
- Brand development risks: Legal checks are often not factored into the planning stages of branding projects, potentially leading to disputes later.
- SEO and digital conflicts: Many SEO agencies bid on competitors’ brand names as keywords in search campaigns to improve visibility. While not unlawful in and of itself, it can cross the line into infringement if the resulting ad misleads users about a brand’s source or affiliation.
- Ownership confusion: Many misunderstand who actually owns creative assets, from design work to AI-generated content, risking future conflicts over rights and usage. This issue has become more pronounced with the rise of AI.
- Social and content creation risks: Agencies may overlook or not be clear when social assets or content such as campaign names, hashtags, or reposted material can create trade mark, copyright, ownership or licensing issues.
The cost of getting it wrong
When businesses fall foul of trade mark infringement allegations, the choice often is: do we try to defend it and risk getting sued when, even if we have a good defence, it will be expensive, or do we just bite the bullet and rebrand? Either way, you are spending a lot of money, and in the rebrand scenario, you may also be losing customers and the brand equity you have spent years creating. I have seen many cases where businesses that have been trading for years are sued down the line.
For agencies, understanding basic IP rights should be part of delivering a complete service, and that can be achieved through greater collaboration with legal professionals upfront where needed. Those who build IP awareness into their creative process reduce risk and add tangible value for clients by developing branding that can stand up to legal scrutiny or potential disputes.
Best practice for creative agencies
There are proactive steps creative agencies can take to reduce the risk of their clients facing IP disputes:
- Know when to bring in an IP lawyer (and build that into your process)
This should happen before clients invest heavily in branding, websites, packaging, etc., but after the agency has narrowed concepts down to a couple of viable brand options. There is greater scope for collaboration between IP lawyers and creative/ad agencies to avoid accidentally walking clients into hot water.
- Use clearance searches as a standard pre‑launch step
Before a client commits to a brand name or product name, agencies should encourage formal trade mark clearance searches via a legal specialist. Make sure searches are done for the right classes of goods and services and in the relevant jurisdictions (in other words, think about your clients’ expansion plans). Agencies do not need to do the legal work themselves, but should trigger the process and help clients understand why it matters.
- Educate clients on ownership of creative assets
Some agencies and clients do not actually know who owns the IP in logos, copy, design, and other brand assets. Agencies need at least a baseline understanding of trade mark and copyright issues so that they can effectively advise their clients and reduce risk of disputes.
- Evaluate AI use in the creative process
As agencies increasingly adopt generative tools, they must ensure they are not inadvertently producing work that too closely resembles existing material that benefits from copyright protection. At the same time, they also need to consider how best to protect the outputs they create, and whether those outputs themselves may be vulnerable to infringement by third parties.
Creativity and legal compliance should not be viewed as competing priorities. The most effective agencies are those that combine originality with commercial rigour. By building IP awareness into the creative process and knowing when to involve specialist legal advice, agencies can help clients launch brands with confidence and avoid problems that are far more expensive to fix later.
About Emma Yates:
Emma Yates is Head of Intellectual Property at rradar. An experienced litigator and specialist intellectual property lawyer, Emma advises businesses on brand protection, reputation management, and commercial IP strategy. She advises on trade mark and copyright protection, risk management, and dispute avoidance, providing practical, preventative guidance that enables businesses to protect and grow their brands with confidence. Where disputes do arise, she has extensive experience litigating in the Intellectual Property Enterprise Court (IPEC), the High Court, and the Court of Appeal. Emma also regularly writes and speaks on issues including trade mark risks and the intersection of IP, marketing, and branding.
