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June 04, 2018

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SPORTS AND INTELLECTUAL PROPERTY RIGHTS


- Vineet Chaudhary, Assistant General Manager & Dy GC Legal Department [ Wockhardt Ltd. ]

vineet-chaudhary

Commercialization of sports has become enormous. Marketing through franchising as well as brand building of sports, sportsmen, and events has gained gigantic importance. In such a scenario, Intellectual Property protection is needed as a safeguard. For the people who run the show, it is a multi-billion business, and protecting this business is the strong arm of Intellectual Property...

Sports, for a very long time, was just considered to be a recreational activity. However, it has now become one of the major sources of entertainment and a big market for business. The Sporting Events are no longer just Sporting Events as money has now acquired an enormous role in all sporting events and the Corporatization of sports has become massive. A major portion of revenue flows from various activities such as branding, merchandising, licensing, etc. which involve exploitation of various Intellectual Property Rights (IPRs) of sports clubs/ teams. In the formation of a sports team or club or organizing of a sporting event, a great deal of Intellectual Property (IP) is generated. Marketing through franchising as well as brand building of sports, sportsmen, and the sporting event has gained gigantic importance, surpassing all other major aspects of a game.

Popular games such as cricket, football, tennis, carracing, and so on have evolved into international sporting events with huge following, making way for colossal marketing potential for organizers. Therefore, the sports franchisees are tapping and capitalizing on various Intellectual Property Rights created by them. This is then used in the form of merchandising, advertising, licenses, etc. mainly for creating brand equity and reputation, in turn building huge profits. We can take examples from teams to even individuals who have started making their own brands to taglines which are trademarked and used commercially to extract gains and benefits. The business quotient in sports is way past to what one could have imagined a few decades ago.

There is no particular law that protects the proprietary material and resolves all the issues that arise out of them. Numerous laws are resorted to in order to safeguard the business interests involved in sports. IP laws form a chief part of such laws and are often pressed into service in tackling various legal issues.

Trademarks

Sport shows intellectual property (IP) in action. Patents encourage technological advances that result in better sporting gears thereby leading to better sporting events. Trademarks and designs contribute to the distinct identity of not just the events but the teams and players appearances

Trademark is one of the most commonly created IP associated with sports. It contributed in the building of brands in the sports business. Trademarks are protected in India under the provisions of Trademarks Act, 1999 with the presence of features like a logo, captions, taglines, slogans, and team names, etc. that which are collectively referred as trademarks and that hold commercial value as they create a level of association with public and fan following and that which are essential for brand value creation in sports teams, clubs, sponsors, and athletes. The names of the franchise, tag lines, etc. capable of being registered as trademarks further assist brand building. Due to the celebrity status, even the names of the players (Sachin Tendulkar, Dhoni) has acquired the status of trademarks. Businesses link their products and images with celebrities and support sporting events. Celebrity athletes have personality rights, also known as the right of publicity which prevents unauthorized use of their names and other personal attributes. The brand image and popularity converts into monetary profits through advertisements, brand ambassadors, goodwill, and reputation of sponsors.

Domain names in sports which are also treated as trademarks by Indian courts play a substantial role in protection of Intellectual Property Rights associated with sports. Domain names build brand image, portability, and search engine optimization.

Personality Rights

The right to control the commercial exploitation of one’s name, image, likeness, or any other aspect of personal identity is the idea of personality rights. Personality rights of a sportsperson play an important role in the brand creation of individual sports players and teams. Celebrity status leads to various forms of image creation, brand endorsement, and revenue generation exploiting the fame factor. In this day and age, it is very much possible for the celebrities to register their name and likeness as trademarks under the Trademark Law. Few of the English footballers such as Alan Shearer, Paul Gascoigne, and David Beckham have also registered trademarks in their names. This is also possible under the Indian Trademark Act, 1999, and to quote an example, Sachin Tendulkar has registered a trademark over his name. Mere association of the name of a team, its logo or a team player could offer unprecedented mileage to the person or entity using such name or logo. It is a loss to the team, team owner, and the player and an unwarranted gain for the entity associating such name or logo for their own commercial benefits without taking any permission or paying any license fee or royalty. Thus, having a clear line of demarcation between the sportsmen’s individual personality rights and his image as a part of the team is very important. Any such unauthorized use of the trademark would amount to unfair trade practice, unfair competition, and also dilution of goodwill and reputation of the respective proprietor.

Character Merchandising

Character merchandising is also becoming a massive revenue-making business. In simple words, the marketing of a name or an image for monetary gain by using a celebrity’s persona or public image is known as ‘character merchandising’. Lot of brands have associated themselves with some sportsmen as that of Michael Jordan and Nike, Sachin Tendulkar and Adidas, and so on. On the other hand, a few sportsmen like Sachin Tendulkar have their own merchandising business with all sorts of gifts and collectibles from colorful T-shirts, baseball caps, knapsacks, and mugs to china plates and crystal glasses to name a few. Yet another way is where the sports clubs come up with merchandising with the players of their teams. In such situations, it is essential for sports associations involved in merchandising to protect the image rights of the sportsman individually. A clear line of distinction should be drawn between the image of the sportsman as a team member to that of an individual. The sports association may have a right over his likeness or an image as a team member dressed in the team jersey but one cannot use his image just because the player is a part of some particular sports club.

Copyright

Copyright law protects the expression of ideas and not the ideas itself. Copyright subsists in literary works, musical works, artistic works, dramatic works, photographs, sound recordings, and cinematographic films. Copyright is protected from the moment the work is created. This right allows the owner to reproduce, make copies, sell, make derivative works, adapt the work, license, and assign the work. In the process of sporting events and its promotions, the maximum amount of IP that is created is Copyright. The artwork in the logos, the literature in the promotional material, the merchandise, and so on are all subject matter of Copyright.

Broadcasting Rights

Broadcasting rights is another set of IP that is created during screening of the sporting events. Broadcasting rights are a separate set of rights recognized by the Indian Copyright Act, 1957. These rights are available apart from rights that are present in the content of a live match. The term of broadcasting rights is twenty five years. Generally, these rights lie with the broadcasting companies. This right allows the owner to rebroadcast the same. According to the Indian Copyright Act, 1957, any person without the license from the owner re-broadcasts the broadcast; or causes the broadcast to be heard or seen by the public on payment of any charges; or makes any sound recording or visual recording of the broadcast; or makes any reproduction of such sound recording or visual recording where such initial recording, or sells or hires to the public or offers for such sale or hire, any such sound recording or visual recording is said to have infringed broadcasting rights. In addition to this, for cases of unauthorized downloading, Section 43 of the Information Technology Act, 2000, provides for a penalty up to `1 crore.

Conclusion

Commercialization of sports has become enormous. Marketing through franchising as well as brand building of the sports, sportsmen, and the event has gained gigantic importance, surpassing all other major aspects of a game. Indian arena is catching up with an enormous increase in the number of franchise-based leagues that have come about in the last decade. Indian Premier League, Hockey India League, Pro Kabaddi League, Indian Super League, International Premier Tennis League are only a few to name in this country of leagues. This enormous change in the sporting culture of this country has widened the scope of sporting brands and hence that of IPR as well.

There were days when sports was merely viewed as an entertainment, for one’s own distraction from the monotonous day-to-day life. However, the presentday scenario of sports has faced many changes. These changes are not only because of the ratio of people who participate but also because of the increased viewership. Since sports clubs and associations spend a huge amount of money on sporting events, Intellectual Property protection is needed to safeguard their interest for effective management. It must be your weekly dose of the game, but for the people who run the show, it is a multi-billion business, and protecting this business is the strong arm of Intellectual Property.

 

Disclaimer – This article is based on research on public domain by the author and not the views of Wockhardt Group.


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