SPORTS AND INTELLECTUAL PROPERTY RIGHTS

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

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.