This article is written by Vasundhara Thakur pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.
Table of Contents
Introduction
Like any other field, sports are no exception when it comes to spotting intellectual property (IP) rights. In sports management, intellectual property subsists in a variety of ways from merchandising, sports accessories to licensing and acquiring sponsorships for the events. The intellectual property rights specify the mode of its acquisition, the nature of the rights conferred, the commercial exploitation of those rights, the enforcement of those rights, and the remedies available against infringement of those rights.
While the major sporting events like FIFA, Olympics, IPL, NBA, F1, Wimbledon, and so on have created an impact on the viewers that these matches are widely recognized and streamed in many countries. Whereas, the sports clubs are excellent examples of IP brand capitalization. Sports teams like Real Madrid (football), Chennai Super Kings (Indian Premier League), McLaren (F1), and so on are some examples that have emerged as huge brands worth millions of dollars. IP helps these brands in marketing, promotion, branding, merchandising, franchising, and licensing that helps in the capitalization of the brands and their products and/or services.
This article highlights various types of intellectual property associated with the business of sports management.
The intellectual property rights and business of sports management
Intellectual property means a property or a creation by an owner using their intellect in the industrial, scientific, artistic, and literary fields. IP in whatever species is like the intangible incorporate property. It consists of a bundle of rights in relation to certain material objects created by the owner. When we talk about the business of sports management such IP can be found in the technological aspect in the form of patents, the aesthetic aspect in the form of designs, logos as a trademark, and broadcasting of sports events as copyright and related rights. These rights stimulate the economic growth of the sports industry as well as give legal protection to the sports personnel, sponsors, and related parties. All the transactions related to sponsorship, merchandising, broadcasting, and dealing with media come under the ambit of IP rights. The sports industry is one of the fastest-growing industries and always stays in limelight for any kind of age group, hence it helps in the creation of jobs, investments in public infrastructure, and mobilizing resources.
Various kinds of IP that are involved in sports management
Trademarks in sports
A trademark is a visual symbol in the form of a word, a device, or a label applied to articles of commerce that indicate to the public that the manufactured goods or services are provided by a particular proprietor as distinguished from similar goods manufactured or dealt by another entity. The law of trademark is based on the concepts of the distinctiveness of marks in similar goods. The trademark is governed by the Indian Trade Marks Act,1999. A registered trademark can be protected in perpetuity subject to its use, periodic renewal, and actions taken by the owner against the infringer.
In sports, the trademark protects the logos, name of the sporting event, team names, domain names, jingles, taglines, and so on. For example, the logo of ICC (International Cricket Council), the IPL team names like Delhi Capitals, Kolkata Knight Riders are protected as trademarks, and any person using such trademarks on the merchandise like jersey, mobile covers, bags, etc. would be liable for trademark infringement. Trademark also protects the poses and words of athletes like Usain Bolt’s “Lighting Bolt” pose and his “to di world” slogan and the US basketball star Michael Jordan’s “Jumpman” pose and his Air Jordan brand shoes are some popular examples of registered trademarks. Although these are not absolute rights over those poses and words, these trademarks prevent the unauthorized commercial use of products without the endorsement of the celebrities.
Registration of a trademark provides broader protection than an unregistered mark. The Trade Marks Act, 1999 provides both civil and criminal remedies for infringement. Trademark registration is not mandatory, although it is advisable to get it registered. A brand can also seek international registration on their trademarks by registering it with the international trademark registering system that requires the filing of a single application applicable in more than 124 countries to protect the registered trademarks in the member states and any unauthorized exploitation of the trademarks would lead to infringement.
Copyright in sports
Copyright means the exclusive right to do or authorize others to do certain acts in relation to original literary, dramatic, musical, artistic work, cinematograph film, and sound recording as stated under Section 13 and the meaning of copyright as stated under Section 14 of the Copyright Act, 1957. The artwork of logos, literature in promotional materials, merchandise, software of computer games and software of different sports events, sound recording of music, lyrics on the theme songs are all covered and protected under the copyright law. In sports, among all the IP rights, copyright subsists in the majority of articles/events. Be it the artistic work of the logo as artistic work or sports blogs/articles which could be protected as the literary work or theme song as sound recording, sponsorship agreements, endorsement agreements, and so on. Hence, it is necessary to protect the copyright. Although registration of copyright is not mandatory as it comes into existence the moment an original copyrighted work is created, registration is always an option to avail the legal remedies as copyright does not protect the ideas. Some legal remedies in case of copyright infringement are injunction order, prohibition, destruction of materials, damages on account of profit, seizure.
Broadcasting rights
Broadcasting rights are the rights to distribute/ stream audio-video content via any electronic media. These rights are transferred by the virtue of the licensing agreement between the broadcaster and the producer or event organizers of sports events. This allows the distribution of copyrighted content via different media like a live telecast of matches, highlights, or as a channel in linear and/or nonlinear platforms. Section 2 (dd) of the Copyright Act, 1957 defines the term broadcast. Whereas, Section 37 specifies the Broadcasting Reproduction Rights. For example, Amazon Prime broadcast F1 races, Star sports for IPL in India, Sky Sports to telecast IPL in the UK and Ireland, Disney+Hotstar to stream live matches, and so on. The broadcasters pay huge amounts to avail exclusivity over these copyright and related rights, in return, the copyright protects the broadcasters against unauthorized retransmission.
Personality and publicity rights
The athletes have acquired certain identity and fame which could be denoted by various traits like name, signature, image, voice, likeness, gesture, etc., all these traits constitute as “personality rights” that prevents the unauthorized use of their name, likeness, or other personal attributes. It is a right to exploit the commercial and the economic value of the name and fame. To claim this right, it is necessary to establish that fame is a form of merchandise that generates commercial and economic value and helps in the promotion of a product or an activity. Personality rights of an individual permit the owner to prevent others from commercially exploiting their image or public representation devoid of their consent and prevent others except for the owner from unjust enrichment arising from unauthorized use. In India, the closest statute for protecting personality rights is Article 21 of the Constitution of India under the right to privacy and the right to publicity. No statute or law protects personality rights in India per se. Nevertheless, these days India also started recognizing these rights through many significant judgments.
In ICC Development (international) vs. Arvee Enterprises And Anr. the Hon’ble High Court of Delhi held that the right of publicity has evolved from the right of privacy that vests on the individual or their personality that they might acquire by association with sports, events, movies, etc, from which that individual is entitled to make a profit and any act to take away such rights from the individual would be violative of Articles 19 and 21 of the Constitution of India.
In the case of Gautam Gambhir vs. D.A.P. & Co. & Anr., the applicant sued the defendant for using their name Gautam Gambhir in running their lounge and restaurant, which was mistaken by people to be associated with the said famous personality. The court did not grant the interim injunction in favour of the defendant as the defendant’s name was also Gautam Gambhir, he has to carry on his business in his name and he neither claimed that the business is related to the cricketer nor he displayed any pictures of the cricketer anywhere. He very prominently displayed his pictures everywhere to show his own identity. And when the logo of the restaurants was being registered no objection was raised by anyone. Seemingly it was decided that the defendant has not made any use of the reputation of the plaintiff’s name in his trade. Therefore, the interim injunction was not granted, and all the pending applications were disposed of.
Trade secrets in sports
Trade secrets could be a process, practice, way of doing business, or any kind of information that the owner believes that the release of which would be injurious to the owner, however, could be advantageous to the rivals or others. Although in India there is no separate statute that governs trade secrets, these could be protected by having/ signing a proper non-disclosure agreement or a confidentiality clause on the main agreement between the sportsperson and the business entity, sponsors for events, or organizers or associations.
Patents in sports
Patents protect the new inventions and novelty of a product or process. In today’s dynamic world with changing technology, sportspeople must provide state-of-art facilities, so these technological aspects come under the patent laws. An invention, if patented, could prevent unauthorized usages for 20 years that provide the researchers time to put innovation and get royalties from their inventions. Patents also help in research and development like online games, sports equipment made of high-tech materials that help the sports personnel enhance their performance. Other patented sports and training equipment includes bobsleds, aquatic wheelchairs, starting block assemblies, stop-watches, golf clubs, and gym equipment. Sports drinks, and muscle-building, and nutritional supplements, are other examples of sports patents.
The patent helps the manufacturer of sports equipment to commercialize their innovation and boost the industry and economy at large, while research and innovation in sports help in improving the already existing technologies or equipment and benefits the general public by providing a wide range of high-quality sporting goods. One such example of a patent is Footwork Training System and Method which is a system and method for evaluating an activity including an article of clothing provided with a sensor capable of detecting the impact of the article of clothing, such as a shoe, on a surface.
The patents are territorial, however, one can seek international registration by applying under the Patent Cooperation Treaty (PCT) that enables the inventors to file single registration to get international patents in multiple countries.
Designs in sports
An article that is appealing to eyes, however, does not possess any functionality or mode, or principle of constructions is protected under the ambit of Industrial Designs Act, 2000. In sports, world designs are emerging with new material that has an aesthetic appeal. Designs include athletic shoes, sports bags, sports apparel. Sports clothing, footwear, socks, stockings, including special boots for sports such as football, skiing, and ice hockey, orthopaedic footwear and socks, as well as tights, gaiters, and other legwear. Scarves, gloves, handbags, medals and badges, sports apparatus and equipment that are necessary for the practice of various sports and which normally have no other specific purpose, such as footballs, skis, and tennis rackets are few examples that can be registered as designs under the Locarno Classification.
Protection of designs is important as it makes the product more appealing that helps in commercialization making the product more marketable. Brands often invest a large sum of money with the change in consumer tastes and mindsets. Also, it helps make the technology more stylish, encouraging people to participate and introduce more creativity in the normal sportswear. Registrering of designs helps the business entity to defend themselves against imitators and counterfeiters.
Registration of design is mandatory, however, the registration only protects the design in the respective country, so to get international recognition the companies can apply under the Hague System that protects industrial design in up to 57 countries.
Commercial exploitation of these intellectual properties rights
An intellectual property right can be commercialized in either of the two ways, one by licensing it and another by way of assignment. Patents and designs can be exploited only after the owner/ inventor gets the registration. Whereas, for exploitation of trademark and copyright, a registered proprietor or owner can grant licensing agreement or can come into an assignment agreement with the interested party as per the terms of use and period of use. Since registration of copyright is voluntary the owner can commercially exploit it as and when they deem fit. In the case of a trademark also, the registered proprietor can grant a license or assign it either after registration of the trademark or before, depending on the terms of use.
Role of WIPO in the business of sports
The World Intellectual Property Organisation(WIPO) time and again has been prompt in spreading awareness for the development and advancement of Intellectual Property Rights. When it comes to sports WIPO conducts events, seminars, and presentations so that the member states can get maximum benefits in protecting and commercializing their IP rights worldwide. It assists the governments and public institutions to integrate IP and sports into their national development plans. It also provides international systems to protect IP rights in multiple countries with single applications like PCT for patents, Hague system for designs, Berne Convention for copyright, and so on.
Conclusion
From above it is concluded that IP plays a vital role in spreading awareness, protecting inventions and other IP rights to the inventors and the owners. While it helps in generating income for the companies, it also helps the companies to invest in fresh and young talents by providing them with adequate means and infrastructure. It is further concluded that providing intellectual property rights protection in sports management promotes innovation and creativity of the management as well as the sports personalities. It provides economic, social, moral, and cultural development and enhances the sportsman spirit among the fans, and creates a healthy competition among the brands to improve and innovate with new technologies.
References
- http://nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017%285%29%20437-442.pdf
- https://www.ijcrt.org/papers/IJCRT2003361.pdf
- https://www.wipo.int/pressroom/en/briefs/ip_sports.html
- https://www.wipo.int/pressroom/en/articles/2019/article_0006.html
- https://www.wipo.int/ip-sport/en/development.html
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