INTRODUCTION
In the present age, sports have become highly commercialized around the world. The importance of marketing through franchising, as well as the creation of brands for sports, athletes, and events, has eclipsed all other major components of a game. Nowadays sports have several brands as their sponsors and we can often see well-known sportsmen on our TV screens in advertisements of different brands.
As the commercial perspective of sports has developed over a period of time, unused Intellectual Property Rights (“IPR”) entrenched in every aspect of this industry are being tapped into and monetized.
Intellectual Property (“IP”) is one of the most important assets that can be used to promote athletic activities and related events, as well as sports clubs, teams, celebrity status, and so on.
IP AND SPORTS
Commercialization of sports is one of the most promising avenues that has increased individual gains while also contributing to the country’s economic progress. Today, IPR is employed as marketing tools to brand games and related events, sports clubs, teams, and celebrity status, all of which require protection in order to avoid unforeseen litigations.
In the sports sector, a sequence of titles is important in sports agreements that include the legal release of a sportsman’s skill so that their work, photographs, and personality rights, among other things, and the same can be utilised for profit by others.
One example of IP in sports is the registration of a trademark in a player’s name, to protect the player’s certain well-known moves or shots. Ricky Ponting, a well-known Australian cricketer, regarded as one of history’s greatest batsman, has registered the word mark “PONTING” in class 25, as an individual and is profiting from its use by selling sports footwear and other kinds of footwear under the word mark.
1. Trademark & Sports
A trademark sometimes known as a service mark, is a distinctive sign or symbol that identifies the source of goods or services. The presence of features such as logo, captions, taglines, slogans, and team names, are collectively referred to as trademarks and hold commercial value as it creates a level of association with the public and fan following which is essential for brand value creation in sports teams, clubs, sponsors, and athletes. Trademark is protected in India under the provisions of the Trademarks Act, 1999 (“Trademarks Act”).
In India, trademarks are protected by registration in a national trademark registry, and once registered, they are theoretically valid for a period of ten years, thereafter subject to timely renewal. The Trademarks Act, allows both civil and criminal remedies for trademark infringement and passing off.
In India, trademark registration is not required; but anyone seeking protection can seek redress in a Court of law. Also trademark infringement is a cognizable offence in India, and therefore criminal actions can be brought against the perpetrator.
Organizers, team owners, and sports equipment manufacturers should register their team names, logos, locations, captions, taglines, and slogans as trademarks under the Trademarks Act, to protect their trademarks from infringement.
2. Copyright & Sports
Copyright ownership is the owners exclusive right to use the work, with some exceptions. When a person creates an original work, fixed in a tangible medium, he or she automatically owns copyright to the work. Copyright in sports can be found in a variety of areas, including artwork linked with logos and trademarks, promotions, slogans, images of athletes or events, and so on, all of which are protected in India under the Copyright Act,1957 (“Copyright Act”).
Copyright is also not necessary to be registered, as the ownership of the work comes into existence as soon as the work is created. India is also a signatory to the Berne Convention for the Protection of Literary and Artistic Works and the International Copyright Order, which enforces a requirement that the member countries should recognize the copyrights held by the citizens of the other member countries to the convention.
However, it is recommended to register for copyright in India since the copyright registration certificate is recognised as “evidence of ownership” in courts and by law enforcement agencies, and any dispute arising thereof, is dealt with smoothly.
Infringement of copyright is a cognizable offence punishable by a term of not less than six months but not more than three years in prison and a fine of not less than INR 50,000 but not more than INR 200,000 as well as civil remedies such as permanent injunctions, damages or accounts of profits, delivery of infringing material for destruction, and cost of legal proceedings, among others is available.
3. Domain name & Sports
Domain names are regarded as trademarks in India, and they play an essential role in the protection of IPR in the sports industry.
Huge volumes of information are distributed and events are broadcasted through the internet, including online games tied to athletic events, which has offered cyber squatters not only an opportunity to benefit from domain name confusion, but also an enormous market share in branding and value creation. Websites have evolved into effective advertising, brand marketing, and follower-building platforms.
Because the Internet is a cost-effective way to reach out to the public and raise awareness about a sporting event, team players, and other topics, various sponsor companies run online competitions, online ticket sales for sporting events, and online shopping portals for merchandise sales, among other things.
An unimaginative or common approach to domain names, on the other hand, could jeopardise the benefits that a sporting event could provide. The establishment of a consistent brand image, portability, and search engine optimization (“SEO”) are all aided by domain names.
To avoid sports fans, product hunters, online gamers, and information seekers from making mistakes that cause traffic to be diverted to unethical websites run by cyber squatters, are now required to register many domain names with numerous permutations and combinations even. Many fake fan sites can be a source of cybersquatting, making it even more important to exercise caution while registering domain names.
4. Patent & Sports
“Patents foster technological breakthroughs that result in improved sporting equipment,” according to the World Intellectual Property Organization. The patent literature could be utilised to tell the evolution of sports.
Patents disclose novel technologies that can assist athletes overcome challenges or make sports more accessible and enjoyable to the general public, while athletes, sportsmen, and teams attempt to set new marks, win championships, or simply have fun. Patents in sports can be seen in a variety of ways.
Take, for example, Basketball was first played with a football, but it evolved and was patented in 1929. Similarly, Decision Review System (“DRS”) in cricket is a technology-based approach that helps on-field umpires make better choices in the sport of cricket. It is also known as Umpire Decision Review System (“UDRS”).
5. Ambush Marketing & Sports
Ambush marketing literally translates to “an attack from a covert location”. One of the key challenges of IPR in sports is protection against ambush marketing. Ambush marketing, which refers to firms advertising their brands or products by associating them with a team, league, or event without paying for the opportunity, has taken off in several athletic events.
The case of Pepsi Co., Inc. v. Hindustan Coca-Cola Ltd. and Others [2003 (27) PTC 305 Del] is a classic example of ambush marketing in India, in which the Delhi High Court imposed a permanent injunction against the Defendant, prohibiting its advertisement from being broadcasted.
Because of the ingenuity of these ambushers, specific national legislation is required to prevent ambush marketing, as well as strategies to counter the threat of ambush campaigns, such as securing trademarks, copyright registrations for all images and logos in sporting events, and entering into contractual obligations with explicit terms and conditions for the use of these IPR.
As athletic events become more lucrative business, many countries have already examined the probability of specific ambush marketing legislation.
POSITION IN INDIA
Sports is one of India’s most profitable industries, and due to commercialization and investment interest, certain sports are gaining incredible traction over others. The expansion of the sports sector created potential for broadcasting, sponsorship, and other forms of marketing, but the area of branding and its exploitation might suffocate those opportunities.
As the Indian economy grows and the country expands its participation in international sports, various IP issues, such as trademarks, broadcasting rights, sponsorship issues, and licencing issues, shall come in the forefront, which needs to be addressed on priority.
Due to the commercialization and exploitation of commercial aspects of sportsmen and athletic events, IPR in the form of copyrights, trademarks, industrial designs, and patents have gained enormous value for protection. Copyright in sports is protected in India under the Copyright Act which covers artwork associated with trademarks, logos, promotions, slogans, photos of players, and events, among other things.
In India, the Copyright Act empowers the police to file a First Information Report (“FIR”) and act independently to arrest the accused, search the accused’s property, and seize infringing content without the need for a warrant from the Court.
AMLEGALS REMARKS
As a source of entertainment, the sports sector has flourished and commercialization of the same with the use of various sorts of IP has resulted in significant revenues. Presently, commercial sports focus on important IP issues like trademarks, copyright, design, licensing, and franchising, among others.
Legal contractual structures must be in place to protect all types of IP developed in sporting events, teams, individual players, and so on, in order to protect all stakeholders and their financial interests.
A sports business model that may be used to develop an effective IPR strategy that addresses the use of patents, trademarks, designs, and domain names in sports, as well as media and broadcasting rights, will be helpful in addressing the IPR issues in the sports industry. Free access to televised sporting events is an appealing option for balancing IPR with the public interest.
As discussed herein above, sports are one of the most commercialized and profitable industry in India, and in such an evolving industry, IPR and IP assets should be safeguarded and any such IP issues arising therein, should be addressed on priority.
-Team AMLEGALS assisted by Mr. Shrenik Dave (Intern)
For any query or feedback, please feel free to get in touch with chaitali.sadayet@amlegals.com or mridusha.guha@amlegals.com.
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