Co-Branding Without Conflict: Legal Tips for Joint Marketing Campaigns

Partnering with other organisations and professionals to deliver joint marketing campaigns can be a beneficial experience. Bringing in valuable expertise, sharing resources and extending your capabilities, collaboration can enable you to deliver projects end-to-end, increasing brand visibility, customer reach and reducing costs.

However, there are some risks in co-branding and partnering for projects.

In this article, we’ll explore the challenges, as well as the legal considerations, and steer you towards pathways that minimise risk and increase your chances of cross-brand success.

Define the Brief

Having a clear, defined brief is key to success when collaborating on marketing campaigns. The brief should be agreed upon before embarking on a project, although it’s wise to have something drawn up before bringing others on board, as this will support your procurement process. When you have a clear idea of the skills, expertise, and resources you need to deliver a campaign, you’ll make better decisions about who you work with.

Your brief should clearly define responsibilities, deliverables, and timescales, as well as an agreed process for approvals and sign-offs. This can then be incorporated into your Joint Marketing Agreement (or sometimes known as a Co-Promotion Agreement) - an essential document that will serve as your legal contract to ensure a mutually beneficial partnership.

Intellectual Property When Co-Branding

Clarifying who owns what is essential. In the UK, copyright is automatically assigned to the creator but, when collaborating, this can get confusing. First, establish who is responsible for creating what, and it will become clearer who owns the IP. In some cases, this may be shared.

When co-branding, each party will typically need to grant the other a license to use their respective brand assets, including logos, trade marks, and brand guidelines, for the duration and purposes of the joint campaign. These licenses should clearly define how and where each brand can be used, including any restrictions on modifications or placements.

Additionally, it's important that each party provides indemnities to protect the other against claims of intellectual property infringement. This means that if one party's use of their own IP results in a third-party claim (for example, if their logo infringes someone else's trademark), that party should be responsible for any resulting costs or damages, rather than their co-branding partner being held liable.

In some cases, when creating assets for a joint campaign, these may be licensed to the client. Therefore, all parties should agree on licensing terms, including whether use is limited or if full ownership will be transferred to the client.

Where assets remain the property of the creators, it’s important to establish whether each party is able to reuse these assets for future projects or as part of their portfolio, especially those created in partnership.

Also, don’t forget that each party must use the other's IP strictly in accordance with their brand guidelines to maintain brand integrity and consistency. This includes adhering to specifications for logo placement, colour usage, messaging tone, and any restrictions on how the brand can be represented. Before launching the campaign, exchange brand guidelines and ensure all parties understand and agree to comply with these standards. Any materials featuring a partner's brand should be subject to their approval before publication to prevent unauthorised modifications or misrepresentations that could damage brand reputation or breach the licensing terms.

Ensure that these matters are stipulated and agreed upon in your Joint Marketing Agreement.

New IP Created During the Campaign

When parties collaborate to create new assets together - such as co-developed content, joint branding materials, or shared creative work - you’ll need to determine upfront who will own this newly created IP. There are typically three approaches:

• Joint ownership (where both parties own the IP equally and both can use it);

• Sole ownership assigned to one party (with the other receiving a license to use it); or

• Ownership transferred to the client with both parties receiving licenses for their own use.

Joint ownership might sound fair, but it can create complications down the line, as both parties would typically need to agree on any future use or licensing to third parties. It's often clearer to assign ownership to the party who will primarily use the asset going forward, or to agree that each party owns the specific elements they contributed.

Whichever approach you choose document it clearly in your Joint Marketing Agreement to avoid disputes later.

Data, Privacy and Information Sharing

One crucial aspect of joint campaigns to consider and plan for is data protection. All parties must adhere to GDPR (General Data Protection Regulations) to stay compliant and protect the privacy of clients and audiences.

Working on joint marketing campaigns, it’s likely that you will share audiences and be privy to their personal information. Your campaign may even involve collecting information, tracking, retargeting, and building audience databases for marketing purposes. Therefore, you must decide:

• Who collects the data?

• Who owns the data?

• How will it be stored and used after the campaign ends?

• Who is responsible for creating transparent opt-in language, communications, and privacy policies?

Remember, you cannot use information owned by another party, even one you’re collaborating with, without the data holder's express permission. If more than one party requires access to customer data, then this must be clearly communicated to the data holder before they agree to share their information.

Aubergine Legal can draft privacy policies, data sharing clauses and consents specifically for joint marketing campaigns. Get in touch for expert guidance.

Confidentiality in Joint Marketing Campaigns

In addition to protecting your customers’ information, you may consider protecting yours. For effective collaboration, it’s important that all parties can share information openly. However, this may involve exposing ways of working, methods, information, and tools you wish to stay between you and your collaborators.

To ensure confidentiality, you have two options:

• Non-Disclosure Agreement - An official contract that prevents the signing party from sharing sensitive or confidential information with other parties.

• A confidentiality clause - For a lighter touch agreement that offers the same protection but may not have the gravitas of an NDA, you may include a confidentiality clause within your Joint Marketing Agreement.

Compliance and Indemnity

Now for the scary bit. How to protect your business and ensure you’re operating compliantly can be difficult enough in your own business; working with others though, increases risk and can make you culpable, even if the mistake was made by a collaborating partner.

Indemnity refers to financial compensation you are responsible for should your business fail to comply with legislation or guidelines, or should your business be found responsible for damage, injury, or loss.

Insurance can protect you in such circumstances, so it is important to ensure your partners also hold valid insurance and also check how collaborations might affect your coverage.

As marketeers, you are typically most at risk of liability from copyright misuse, false claims, or unlicensed content, which is why it’s important to officially agree upon IPs, ownerships, and licenses. It may also be fair to request proof of licenses from your collaborative partners.

A checklist can work well to keep track of who owns what and what the terms of licenses are.

Rules for indemnity claims and responsibility should be outlined in your Joint Marketing Agreement.

Financials in Joint Marketing Campaigns

If being paid by a client for campaign delivery, then obviously the split of fees must be agreed upon by all parties prior to embarking on the project. However, when embarking upon a co-branding campaign that handles sponsorships, affiliate revenue, profit split, etc this may become more complex.

You should also consider outgoings. Each party must set a budget and agree upon who is responsible for which costs and whether these will be reimbursed or if the fee/profit split will account for differences in resource input.

One last but most essential consideration is what will happen in the case that a party pulls out of the agreement. You will need to consider how this might affect the campaign and also the payment terms.

All financial aspects should be clearly laid out in your Joint Marketing Agreement.

Ensuring Effective Collaboration

Lastly, work together to plan for how you will collaborate most effectively. Agree upon the following:

• How will you manage workflow

• How you will communicate (email, meetings, via a project platform, etc.)

• What brand alignment will look like and how you will achieve that

• Platforms or software you will use, including workflow management tools

• Approval and sign-off processes

• How will you deal with unexpected delays

Legal Agreements for Joint Marketing Campaigns

A Joint Marketing Agreement is essential when collaborating. Not only will this help you establish responsibilities and therefore increase your chances of working effectively together, but it should also protect all businesses individually and the business relationship also.

For a tailored Joint Marketing Agreement, please get in touch with Aubergine Legal, who specialise in working within the marketing profession.  We specialise in providing practical legal support to marketing professionals and agencies. From Joint Marketing Agreements and data sharing clauses to confidentiality agreements and IP licensing, we understand the unique challenges of collaborative campaigns. For a tailored Joint Marketing Agreement or expert guidance on any aspect of co-branding, visit the Aubergine marketing services webpage or get in touch to discuss how we can support your next campaign.

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