Intellectual Property in Sports

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Introduction: The intersection of intellectual property laws and the sports industry has become increasingly significant in today’s commercialized sporting landscape. Sports, once solely a source of entertainment and leisure, now hold substantial economic value globally, particularly in nations like the United States, India, the United Kingdom, and across Europe. This introduction sets the stage for exploring the application of intellectual property rights within the context of the sports industry, focusing primarily on India.

Evolution of Sports and Commercial Significance

Sports have evolved from mere entertainment to commercially lucrative ventures, akin to multinational corporations, through avenues such as merchandising, marketing, franchising, and brand building. Major sporting events like the Indian Premier League (IPL), Major League Soccer (MLS), the English Premier League (EPL), and others have garnered immense economic rewards through aggressive marketing strategies, leveraging the marketable potential inherent in these sports.

Exploitation of Intellectual Property Rights

With the economic significance of sports on the rise, professional sports teams and corporations have increasingly turned to exploiting and capitalizing on intellectual property rights. These rights are utilized through various means such as merchandising, advertising, exclusive and non-exclusive licenses, and broadcast rights.

Need for Intellectual Property Protection in Sports

Given the commercialization of sports, it has become imperative for stakeholders to safeguard their intellectual property rights. Traditionally, the primary focus has been on trademarks and copyrights, which play a crucial role in protecting the identity and creative works associated with sports entities and events.

Examination of Trademark Laws in India

This section delves into the applicability of trademark laws within the Indian sports industry. It analyzes the challenges and loopholes within existing legislation, identifying areas where trademark protection may fall short in adequately safeguarding sports-related intellectual property.

Analysis of Copyright Laws in India

Similarly, the discussion extends to copyright laws in India and their relevance within the sports domain. By examining the scope and limitations of copyright protection, this section sheds light on potential gaps that may exist in safeguarding creative works, broadcasts, and other copyrighted content associated with sports.

Grey Areas and Challenges

Despite the existing framework, there remain grey areas and challenges in effectively enforcing intellectual property rights in the sports industry. Ambiguities in the law, enforcement issues, and the dynamic nature of the sports landscape pose significant hurdles to robust protection and enforcement of intellectual property rights.

Copyright, Broadcasters’ Rights, and the Impact of Social Media on Sports Content Distribution

Copyright Protection in Sports

Copyright protection for sports-related content in India is governed by the Copyright Act of 1957. This includes various components of sporting events such as promotional artwork, slogans, and player images. Advancements in communication technologies have revolutionized sports coverage, allowing global participation in major events.

The Role of Neighbouring Rights

Neighboring rights complement copyright protection by safeguarding against unauthorized broadcasts. This relationship between sports and television media underscores the importance of exclusive broadcasting rights, for which media organizations pay substantial sums.

International Agreements and Copyright Registration

India’s adherence to international agreements like the Berne Convention of 1906 and the International Copyright Order of 1999 highlights its commitment to copyright protection. While copyright registration is not mandatory in India, it is advisable due to its evidentiary value in legal proceedings.

Impact of Social Media on Sports Content Distribution

Social media platforms have fundamentally changed how sports content is consumed by fans. However, this shift presents challenges for rights owners and their partners, particularly regarding the proliferation of vines, GIFs, live streaming, and piracy. The rapid pace of technological advancement has outpaced legal frameworks, leading to difficulties in enforcement.

Challenges and Issues

One prevalent issue arises when individuals attending sporting events capture photos and videos, subsequently monetizing them without authorization. This unauthorized distribution, whether through selling or uploading to the internet or live streaming on personal websites, raises legal and ethical concerns regarding intellectual property rights infringement.

Legal Responses and Solutions

Addressing the challenges posed by social media requires a multifaceted approach. Legal frameworks must evolve to keep pace with technological advancements, providing clearer guidelines for the protection of intellectual property rights in the digital age. Additionally, stakeholders in the sports industry should prioritize education and awareness campaigns to foster respect for intellectual property rights among fans and content creators alike.

The question arises as to whether the unauthorized distribution of sports content constitutes a violation of the broadcasting rights held by authorized broadcasters. According to the definition provided in Section 2(dd) of The Copyright Act 1957, a broadcast involves communication with the public:

  • Through wireless diffusion, encompassing various forms such as signs, sounds, visual images; or
  • Via wire transmission, and also encompasses re-broadcasts.

This prompts consideration of whether the unauthorized dissemination of sports content through mediums like social media platforms constitutes a breach of the exclusive broadcasting rights held by authorized broadcasters.

The definition of “communication to the public” as per Section 2(dd) of The Copyright Act 1957 encompasses making any work available for public viewing, listening, or enjoyment, directly or through any means of display or diffusion other than by distributing copies of the work. Therefore, the act of uploading a video by an individual seated in the stadium qualifies as a broadcast, constituting a violation of broadcasters’ rights. This highlights a grey area regarding how to prevent individuals from capturing photographs and recordings within the stadium premises.

Moreover, there arises the question of copyright ownership over these photographs and videos. While it may seem straightforward that the individual capturing the content holds the copyright, the justification is questionable. The ticket purchased grants permission to attend the match, not for recording or photographing for commercial purposes.

Furthermore, if individuals download videos from authorized broadcaster websites and share/upload them on their platforms, potentially garnering significant traffic, would this action be deemed copyright infringement? This scenario raises concerns about whether such dissemination constitutes a substantial part of the event and breaches copyright laws.

Similarly, the unauthorized streaming of live matches in pubs, bars, or restaurants on large screens without proper permission for commercial use may also infringe upon broadcasters’ rights. While the subscription taken by these establishments is for personal use, utilizing live sports broadcasts to attract patrons for commercial gain could be construed as infringement.

Additionally, it’s important to note that broadcasters’ rights do not protect the copyright in the content itself. Rather, they pertain to a set of exclusive rights granted to broadcasters under the Indian Copyright Act of 1957, amended in 1994. These rights, categorized as neighboring rights, safeguard the broadcast itself, distinct from the underlying copyright in the work.

As established in the case of Espn Star Sports v Global Broadcast News Ltd. and Ors, Sections 13 and 14 of the Copyright Act specify that copyright subsists only in the work, excluding broadcasts. Therefore, while broadcasters have rights in the telecast of live events communicated to the public as per Section 37 of the Copyright Act, these rights are separate from copyright protection.

Hence, the Broadcast Reproduction Right, distinct from Copyright, is vested in the Broadcasting Organization responsible for disseminating the broadcast to the public under their logo, utilizing wireless diffusion or wire transmission, as outlined in the definitions of Broadcast under Section 2(dd) and Communication to Public under Section 2(ff) of the Act.

Consequently, Section 61 does not apply in proceedings concerning the infringement of Broadcasting Reproduction Rights. This provision is specifically applicable only in cases where an exclusive licensee of a copyright initiates legal action for copyright infringement.

In the UK, broadcasters of sports events benefit from copyright protection in transmitted programs, considering them as broadcast works. Consequently, individuals who record, edit, upload, or distribute clips of sporting action from live broadcasts may potentially infringe upon the broadcaster’s copyright. However, the situation differs in India.

Regarding trademark usage concerning Personality Rights, Merchandise Counterfeiting, and Ambush Marketing, symbols and team names such as Rajasthan Royals and Mumbai Indians establish significant associations with the public and fanbase, contributing to the popularity and ratings of respective teams, clubs, and players.

Elevated Significance of Athletes’ Image Rights in Sports

As the sports industry has burgeoned into a global enterprise, the importance of athletes’ image rights has risen commensurately. Notably, the names of players such as Sachin Tendulkar and Dhoni ascend to the status of trademarks owing to their celebrity stature. Businesses strategically align their products and imagery with these celebrities, lending support to various sporting events.

Celebrity Athletes’ Rights: The Right of Publicity

Celebrity athletes are vested with personality rights, commonly known as the right of publicity, which prohibits unauthorized use of their names and other individual attributes. This safeguard ensures that their brand image and reputation are not exploited without permission.

Monetizing Brand Image and Reputation

The esteemed brand image and reputation of celebrity athletes serve as valuable assets, yielding financial profits through avenues such as advertisements, brand ambassadorships, goodwill initiatives, and sponsorship deals.

Recognition of Personality Rights in India

In India, personality rights are not explicitly recognized as a separate legal concept. Instead, they are typically invoked through the Right to Privacy enshrined in Article 21 of the Indian Constitution or inferred from the Right to Publicity implied in Article 19. These rights are often protected either as an extension of the right to privacy or as the property of an individual.

Trademark Protection Strategies

To safeguard their trademarks in Indian courts, organizers, team owners, and sports gear manufacturers are advised to register their team names, logos, venues, captions, taglines, and slogans under the Trade Marks Act 1999. Additionally, players should consider taking the initiative to register their names, photographs, and caricatures as trademarks.

Combatting Unauthorized Use

Unauthorized use of trademarks without the consent or license of the respective owners can lead to damage to the goodwill and reputation of stakeholders. Such actions amount to dilution of goodwill and reputation, constituting unfair trade practices and unfair competition. Stakeholders must take proactive measures to prevent and address such infringements.

Combating Merchandise Counterfeiting in India

Under the Trade Marks Act 1999, both civil and criminal remedies are available against infringement and passing off actions. Notably, registration of trademarks is not mandatory in India. Individuals seeking protection can enforce their rights in a court of law. Interestingly, trademark violation is considered a cognizable offense in India, allowing for criminal proceedings to be initiated against the accused. This multifaceted approach aims to deter and address the pervasive issue of merchandise counterfeiting in the country.

The presence of enforcement mechanisms indeed holds the potential to bolster trademark protection and curb infringement in India. However, the reality paints a different picture, as numerous instances of unauthorized sports merchandise sales persist.

Despite the availability of legal safeguards, counterfeiting remains rampant, particularly as events like the IPL gain immense popularity. Unauthorized merchandise bearing logos of IPL teams or international sports clubs can be readily found in small shops across Indian cities.

For instance, in 2017, a sports goods seller in Chakarpur was apprehended by Gurugram police for allegedly vending fake footballs branded as Nivia. This case marked a rare utilization of intellectual property laws, resulting in charges of cheating and infringement under the Indian Trade Marks Act. Notably, it was one of the first instances where the Act was invoked to confiscate counterfeit footballs in the capital city.

These incidents underscore the ongoing challenges in effectively combating counterfeiting, emphasizing the need for more robust enforcement measures and heightened awareness among stakeholders to protect trademarks and combat infringement effectively.

In the legal matter involving Skechers USA Inc & Ors versus Pure Play Sports, the plaintiffs offered footwear across distinct categories, notably including the ‘SKECHERS GOwalk footwear’ line introduced and launched in 2011. They asserted that their product epitomized a blend of style, comfort, quality, and value appealing to a broad customer base. Allegedly, the defendants had introduced and marketed footwear closely resembling the plaintiffs’ GOwalk 3 series, constituting a replica or lookalike.

Ultimately, the Delhi High Court granted an ad interim injunction in favor of the plaintiffs, acknowledging the validity of their claims.

To combat counterfeiting and protect intellectual property (IP), companies or franchises, including several IPL franchises, have established anti-counterfeiting positions within their organizations. However, a significant challenge they encounter is gathering information and remaining vigilant regarding infringing activities.

It can indeed be argued that police intervention could be utilized to raid shops selling infringing merchandise domestically and seize such material. However, a significant gap exists in the law when it comes to addressing the sale of counterfeit goods from abroad through e-commerce websites. Unfortunately, the Trade Marks Act 1999 does not provide provisions specifically tailored to tackle this scenario. As a result, enforcement authorities face challenges in effectively combating the sale of infringing merchandise originating from foreign sources via online platforms. This highlights a critical lacuna in the legal framework that requires attention and potential amendments to address the evolving nature of counterfeiting in the digital age.

Ambush Marketing in Sports

Ambush marketing, despite being relatively unfamiliar, plays a significant role in safeguarding brand names within the sports industry. This strategy involves companies promoting their brands or products in association with a team, league, or event without official sponsorship. In sporting events, ambush marketing has gained prominence, posing notable challenges to Intellectual Property Rights (IPR) protection.

However, India lacks specific laws addressing ambush marketing, leaving sports leagues like the IPL without effective tools for recourse. This legal void has been exploited by advertisers, particularly during events such as the IPL or the Cricket World Cup. For instance, various restaurants, hotels, and e-commerce websites seize the opportunity by offering enticing discounts and promotions using coupon codes that incorporate the name of the league or event. Examples include ‘IPL20’ for a 20% discount on merchandise at Printavenue, ‘HAPPYIPL’ promotions by Ola, or ‘YOCWC’ utilized by Yo China.

Additionally, these coupons are not publicly advertised; rather, they are distributed to specific individuals via mail or SMS.

In one instance, during the fifth edition of the IPL in 2012, the Life Insurance Company (LIC) launched an advertisement campaign titled ‘Predict and win’. The campaign featured IPL-related questions, such as predicting the four teams that would play in the semifinals of IPL 2012. Despite not being an official sponsor of the IPL event and without paying any sponsorship fees, LIC engaged in clear ambush marketing. However, due to the absence of relevant laws, the IPL organizers had no recourse.

In another case, Parle Agro, an Indian consumer goods company not affiliated as an official sponsor of the IPL event, launched the Indian Food League (IFL) website for its popular snacks brand Hippo. The campaign was structured around the Indian Premier League viewer’s choice award of teams. Viewers visiting the website were invited to select their favorite food dish from a particular region, with the region receiving the highest number of votes declared as the winner of the IFL.

The ingenuity displayed by ambush marketers underscores the need for specific national legislation aimed at preventing ambush marketing. Implementing strategies to counter the threat of ambush campaigns involves securing trademarks and copyright registrations for all images and logos associated with sports events. This can be achieved through contractual obligations with explicit terms and conditions governing the use of these intellectual property rights. Several countries have already enacted legislation tailored to address ambush marketing.

The International Olympic Committee (IOC) has adopted various tactics in its efforts to combat ambush marketing. One such approach is the naming and shaming technique, which involves publicly announcing corporations found guilty of ambush marketing at press conferences. Additionally, the IOC advocates for host countries to enact domestic laws safeguarding intellectual property rights associated with the Olympic Games. The IOC also emphasizes the importance of domestic legislation to protect trademarks and sports event marks, ensuring exclusive association rights for the Games’ sponsors.

Addressing Intellectual Property Violations in Sports: Conclusion & Suggestions

Securing Economic Value through Intellectual Property Rights

Intellectual property violations, spanning trademarks, copyrights, design, patents, etc., are inevitable in the commercialized sports industry. Intellectual Property Rights (IPRs), alongside legal protections, play a crucial role in safeguarding the economic value of sports. Exploiting various forms of IPRs not only drives economic progress for domestic sports associations and event organizers but also enhances individual profit margins for athletes while attracting international interest and foreign investment.

Prohibition of Photography and Recording in Stadiums

To address the issue of unauthorized photography and recording in stadiums, it’s suggested to include explicit terms in ticket terms and conditions prohibiting such activities. Additionally, banning the use of recording equipment within the stadium premises can further deter such infringements.

Restrictions on Unauthorized Telecasting in Establishments

Cafes, bars, pubs, restaurants, and similar establishments should be restrained from broadcasting live matches without obtaining proper licenses from broadcasters or event organizers. This could be enforced through legal clauses within copyright law, accompanied by measures empowering law enforcement agencies to intervene against infringing activities.

Legislation for Personality Rights and Sponsorship Programs

India should consider legislation for personality rights to protect the image and status of athletes. Moreover, establishing successful sponsorship programs can further enhance athlete protection and support.

Combatting Counterfeiting

Teams and clubs should utilize monitoring services to detect counterfeiting activities and closely monitor websites engaged in such practices. Collaboration with government officials, particularly Customs, can bolster efforts to prevent the entry of counterfeit goods into the country. Education initiatives targeting consumers can raise awareness about counterfeit products and their negative impact on brands.

Addressing Ambush Marketing

Introducing anti-ambush marketing clauses within individual IPRs and enacting a sui generis anti-ambushing law can effectively tackle ambush marketing tactics. These measures will foster innovation and investment within the Indian sports industry while reassuring domestic and international stakeholders of the protection of their investments and IPRs.

Call for Specific Legislation

India requires comprehensive legislation specifically tailored to the sports industry, with a focus on addressing intellectual property rights challenges. This legislation should encompass unique sports proprietary rights to safeguard innovation and creativity within the Indian sports landscape.

Frequently asked questions

Why is intellectual property protection important in the sports industry?

Intellectual property rights are crucial in the sports industry because they safeguard the economic value associated with sports entities, events, and athletes. Trademarks and copyrights protect the identity and creative works related to sports, ensuring that stakeholders can capitalize on their investments and innovations.

What are some common forms of intellectual property exploitation in sports?

Intellectual property rights in sports are exploited through various means such as merchandising, advertising, licensing, and broadcast rights. This includes selling branded merchandise, displaying advertisements, granting licenses for use of trademarks and logos, and securing exclusive rights for broadcasting sports events.

How do trademark laws apply to the Indian sports industry?

Trademark laws in India apply to protect symbols, logos, team names, slogans, and other identifiers associated with sports entities and events. However, there may be challenges and loopholes in existing legislation that need to be addressed to ensure adequate protection of sports-related intellectual property.

What role do copyright laws play in protecting sports-related content in India?

Copyright laws in India govern the protection of creative works associated with sports, such as promotional artwork, slogans, player images, and broadcasts. These laws ensure that unauthorized use or reproduction of copyrighted content is prohibited, safeguarding the economic interests of rights holders.

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