Product placement rules for films raise IP right qualms

A new law has been published that will allow trademarked products to be 'placed' in films. The law follows radical changes to the way that film making in Italy is funded. However, there are some concerns that the introduction of product placement could affect authorial, moral and theatrical rights in films if not correctly applied or interpreted.

Among other things, the law deals with the technical methods needed to put into effect trademark and product placement in films. Article 2 of the law establishes the ways in which such product placement should be contracted between parties, according to the general principles of law.

Under the law, trademarks and products present in a film should respect the general advertising rules of behaviour, namely the prohibition against advertising being misleading or designed to imitate, confuse, or exploit the notoriety of others, or to denigrate different companies or products. Further, the film should carry a notice in the credits warning the viewers about the presence of trademarks within the film.

The law also establishes rules relating to:

• the protection of minors;
  
  
• the prohibition of marks connected to tobacco products; and
  
  
• limitations on the inclusion of alcoholic drinks and pharmaceutical products.

Brand owners are advised to plan a general entertainment marketing strategy for the way in which their products will feature in a film from the very beginning. This should cover product placement, merchandising, co-branding, sponsorship, co-marketing and any other cooperation between commercial companies and film production companies.

The law stresses that all parties should be aware of the existing authorial and moral rights on the one side, and trademark and exclusive design rights on the other. Critics warn that in order to consider the legality of product placement, careful attention must also be paid to copyright, trademark and design legislation.

Leonardo Paulillo, De Simone & Partners, Rome