Sports And Intellectual Property

"The intellectual property involved in sporting events is wide and diverse. Thus it is of essence that it is protected and enforced, thereby making these events a viable financial source for all concerned"

"An image... is not simply a trademark, a design, a slogan or an easily remembered picture. It is a studiously crafted personality profile of an individual, institution, corporation, product or service." Daniel J. Boorstin1

Sports continue to thrive and garner more popularity than ever, even in these troubled economic times. Hosting a sports event on a national and international scale is a means to derive profit. Such events attract vast audiences, participants and media agencies.

Businesses provide large capital to fund such events and hence the organizing committee enforces strict regulations on intellectual property (IP).The IP involved in sporting events is wide and diverse. Thus it is of essence that it is protected and enforced, thereby making the events a viable financial source for all: the organizers, the hosting country and the investors.

A prominent display of trademarks at prestigious sporting events increases sales by appealing to the aspirations and emotions of sports fans, who are drawn to signs and symbols associated with a given club or sport. Trademarks help expand the market, gain greater recognition and make profits while increasing the brand valuation. Advertisement of brands in the form of sports teams and their players is big business as the organizations depend on the revenue generated from advertising and sponsorship.

Success of a team directly influences its brand value, income and the spending power of the organization involved. This enhances the value of the event because the organization is in a position to afford better facilities and skilful players. We have witnessed how in cricket, the T20 format was more of an entertainment event, than cricket, by creating a win-win situation for all parties involved. T20 generated many IP rights including trademarks and copyrights (a bundle of rights in designs, content and media rights).

Similarly on a world forum, the symbol of 'Olympic rings' is the most distinctive and recognized sports event mark in the world. It enjoys protection at the international and national level around the world. The Nairobi Agreement protects the Olympic symbol of 1981. Further, the provisions of the London Olympic Games and Paralympics’ Games Act of 2006 helps to protect the use of the Olympic Motto and the use of expressions such as “the Games”, "Olympians", and "Olympiad". Even strap lines were used in advertisements, such as 'Come to London in 2012' and ‘Watch the Games here this Summer’. These strengthening measures help provide protection to the brand OLYMPIC and combat “ambush marketing” (discussed further in detail below) which benefits official sponsors paying high revenue.

Another tool to augment the utilization of a trademark is a sports mascot. A distinctive sports mascot may also qualify for registration as a trademark as well as copyright. It may also be protected as a registered design. These mascots offer the organizers a wide range of merchandising opportunities; resulting in significant financial gains2. The Olympic family, under the direction of the IOC, works to preserve the value of Olympic The Olympic symbol, the Paralympics symbol, the London 2012 logo, the British Olympic Association logo, the URL www.London2012.com, and derivatives thereof are all protected by The London Organizing Committee of the Olympic Games (LOCOG)4.

Further, franchising IP rights serve as a substantial source of revenue for a sports event organizer. They also help reach out to a wider audience and promote the games. T.S. Darbari, Joint Director General, Delhi 2010 XIX Commonwealth Games reveals: "There is an economic impact of these games. They contribute a lot to the GDP. For instance, the Commonwealth Games held at Manchester in 2002, contributed USD 3400 million to the country’s GDP, while those held in Melbourne in 2006 had an impact of USD 1600 million on Australia’s GDP. The forthcoming CWG is expected to have an impact of USD 4940 million on India's GDP."5

Licensing also plays a pivotal role in generation of revenue. Licensing exclusive merchandise selling rights helps to promote the mark and create goodwill. Events and franchises derive a large share of revenue and profits from licensing of trademarks, copyrights, trade dress, and rights of publicity6.As can be seen, FIFA offers wide product category exclusivity that allows each brand to distinguish itself from competing brands in its product category. Companies are able to use their marketing rights, in line with each company's individual marketing strategy, to deliver a clear brand image to the public7.

Thus, it can be concluded that a sporting event helps create huge business and attracts attention worldwide. The trademark of a business when associated with a sporting event not only helps to advertise one’s goods and business but also helps to create a sense of quality and goodwill around the business and goods/services as a whole. However, the exposure and extent of use of the mark also tempts others to replicate products bearing the said marks, leading to deception of consumers and tarnishing of quality. The logo given alongside is one such instance of an entity trying to project its association with the Commonwealth Games by attempting to register the mark "DELHI 2010 INDIA COMMONWEALTH INTERNATIONA TRAVEL MART" in class 41 and thereby attempting to ride on their goodwill.

Personality Rights

In addition to the image of sports on the global business front, the image of sports personalities also garners tremendous significance. Further, in addition to the games, businesses seek to associate themselves with successful sports personalities. Hence professional sports associations aim to control the image rights of their team members and star players8. It has been witnessed, that where the persona of German goalkeeper Oliver Kahn, during the World Cup 2002, was used in a computer game by Electronic Arts, Inc (EA), Fédération Internationale de Football Association (FIFA) had granted EA permission to use its logo but their usage of a specific team member fell outside the purview of the contract. The strong personality right laws of Germany curtailed the unauthorized use of the same. Thus the computer game was recalled from being sold, resulting in a loss of millions.

Ambush Marketing

Ambush marketing plays a very important part of IP rights in sports. In the World Cup cricket tournament of 1996-97, Coca-Cola’s advertisement claimed itself to be the official Cola of the tournament, whilst Pepsi bought out an advertisement saying “there is nothing official about it”. It is a classic example of ambush marketing and there is no legal remedy for this kind of campaign. Thus, not only the partners who spent revenue gained from it but also the competitors found a way to seek attention.

Conclusion

Indian organizers and investors are realizing the potential of deriving values of their trademarks from sporting events. However, there is still a need for awareness on creation and deriving values out of IP rights and especially 'personality marks'.

Footnote:
1 American historian, professor, attorney and prize-winning author (October 1, 1914 – February 28, 2004)
2 http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume7/number2/blackshaw/blackshaw.pdf
3 Id., at 21.
4 http://iipi.org/wp-content/uploads/2010/07/Sporting_Events_and_Intellectual_Property.pdf
5 http://www.scribd.com/doc/40234158/Intellectual-property-and-Business-Magazine-August-2010-Issue-Mabbit-Communications
6 http://www.wipo.int/ip-sport/en/olympic.html
7 http://www.wipo.int/ip-sport/en/licenses.html
8 http://iipi.org/wp-content/uploads/2010/07/Sporting_Events_and_Intellectual_Property.pdf

Disclaimer–The views expressed in this article are the personal views of the authors and are purely informative in nature.