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Sports and Intellectual property rights: An Outlook

*Kinjal Baug



Introduction


Intellectual Property plays a vital role in a wide range of areas, ranging from technology, art, science, etc., to sports. The primary objective of IPRs is to provide the inventor or creator with an exclusive right over the use of his/her intellectual property, which further encourages creative endeavours. IPRs are essential in the sports business because they carry value in their own right and marketing tool. In sport, the law, especially IPRs, can play a significant role in its advancement and development. This field has consistently been subject to legal disputes and other conflicts which the application of law can settle.


Moreover, the expansion of traditional sports in the virtual and digital sectors has unfolded new avenues for IPR in sports. IPRs are a significant part of the law and can be utilized to uplift the sports industry. Various species of Intellectual Property are related to the commercialized sporting world, and the same have been elaborated in this next section.


Patents


A patent is an exclusive right granted to an inventor or assignee in exchange for detailed public disclosure of his innovation for a limited period. The owner gets the right to exclude others from making, utilizing, selling, or bringing in the invention after a patent is registered. Patent protection to the innovations protects not only against third party infringements but also upgrades commercial interests. Patents forestall the unauthorized use of the invention for the patent's life, which is usually 20 years. In India, patents are regulated by the Patents Act, 1970.[1]


A patent is a significant incentive for the technical as well as creative knowledge of the inventor. In sports, it is feasible to get patent for sports method inventions like a method for putting a golf ball, method for fitness training, etc.[2] Besides, by the end of the 20th century, there was a revolutionary change in the definition of games, using computers and electronic devices. The newly launched 'Pokémon go' game is an exemplary illustration of using expanded reality concept in mobile gaming. Along these lines, many different sports activities such as car racing and bike racing use advanced safety features that might be patent secured. In some condition, patented technology has offered to ascend to non-traditional sport, for instance, bungee jumping and paragliding. Nowadays, even the traditionally played games such as cricket effectively use proprietary products, such as contact sensing stumps. Similarly, in the field of energy drinks and supplements designed to help athletes perform better and rehydrate faster, innovation has been ubiquitous.


Trademark


A trademark is any unique, recognizable sign, expression or design representing a trade or business. Trademarks are generally in the form of logos, taglines, indicators of a particular sportsperson, and so on.[3] Numerous legal disputes arise because of the unauthorized usage of trademarked logos, names, and so forth. One such dispute arose over the usage of the name 'Champion League' between BCCI and UEFA.[4] Registration of trademarks moreover helps in brand building as well as affects the public ratings of various sportspersons. One such instance is the name of the famous football player 'David Beckham', who has filed for a trademark of his name and earned millions of dollars through sponsorship deals and endorsements.[5] In India, trademarks are governed by The Indian Trade Marks Act, 1999.[6]


Various goods related to clubs and individuals, such as jerseys, mugs, caps etc., can be registered. Now domain names can also be written as trademarks with the growth of technology and the Internet. The organizers of sporting events can earn revenue from sponsorships and merchandising by registering a trademark.


Copyright


Copyright, otherwise called an author's right, is a type of intellectual property owned by a creator of literary and artistic works.[7] This gives power to the copyright holder to make an imitation, make copies of the work done, put up for sale, do subordinate works, adapt the work, approve and assign the work to other people if needed. Copyright in sports vests in different constituents of a sporting event, inter alia, incorporates the fine art related to the logos, trademarks, slogans, promotions, images of a player, event and so on.[8]


Copyright in sports, similar to other copyrights, is ensured in India under the provisions of the Copyright Act, 1957[9]. Headway in communication technologies has altered broadcast and sports coverage and thusly empowered people worldwide to participate in the fervour of significant sports events. The pictures in the logos, the products, and the short story in the advertisement, software utilized in computer games that are accessible online and various other things like that are all the subject matter of copyright. These days there is an extraordinary range of video games of different types. The avatars utilized in these games, the graphics contained in that and numerous other like things are likewise the subject matter of copyright.


Other Intellectual property rights


Trade Secret


Confidential information associated with a business enterprise that gives it a competitive edge over others can be considered a trade secret. In sports, data, such as gameplays, statistics, and analysis of the competitors, method of coaching and so on give a competitive edge. Further, regarding data, confidentiality has to be maintained. There has been an instance where a player quit his club and joined another club yet gave a few schemes and data regarding the playing style of his former club to the new club; it was held to be a breach of trade secret law.[10] There is no specific act in India that oversees the safeguarding of trade secrets and confidential information, yet the same can be done by having confidentiality clauses in contracts.


Personality Rights


In the current environment, sports celebrities are created overnight, and celebrity status prompts several forms of image creation, brand endorsement, revenue generation and capitalizing on fame. In this way, for athletes, utilizing their celebrity status in the form of endorsements and capitalizing on fame is a significant wellspring of income. Personality right, otherwise called publicity right, is majorly used to control the industrial exploitation of one's image or personality. A prominent Indian sportsman, Sachin Tendulkar, has registered his name under the Indian Trademark Act, 1999.[11] The endorsement of a celebrity's persona is also known as 'Character Merchandising' and is a massive income procuring business. In India, these personality rights of the sportsmen are protected under the fundamental right of the Right to Privacy. This type of intellectual Property also demarks the image of a sportsperson as a part of a team from his/her image as an individual.


Broadcasting Rights


"Sports from the sofa" [12] has made the viewer experience trouble-free and has become a part of our day to day life. It can be said that broadcasting media rights are one of the species of copyright law. The term of broadcasting rights is 25 years. Broadcasters have been a ceaseless target of unauthorized transmission of footage. In India, the infringement of broadcasting rights is regulated by the Indian Copyright Act of, 1957 and the courts have set further interrelations between copyrights and broadcasting rights. Besides, unauthorized downloading of the content may prompt a penalty of up to INR 1 crore under the Information Technology Act, 2000. [13]


Domain Name


Internet and related business activity has contributed considerably to the significance of domain name and its usage as a business identifier. In sports, epic data is dispersed, and events are broadcast through the internet, which has also assimilated a vast market value in branding. Nowadays, every sports club has its own website. Additionally, some of the sportspersons have their own website, for example, www.sachintendulkar.in. In the Indian context, there isn't a different domain name registration mechanism. The ideal way of ensuring one's domain name is to register the domain name as a trademark, which by and large is considered while adjudicating over the domain name disputes.


Ambush Marketing


Another legal issue in the advanced commercialized sports industry is ambush marketing, otherwise called parasite marketing. It is an idea when an unauthorized person or entity markets itself in such a manner by giving a wrong insight to the public by proposing its contribution to the event. It alludes to someone's endeavour to capitalize on the goodwill or fame of another without due approval.[14]


There is no particular law in India to manage ambush marketing, yet this issue can be settled by having anti-ambush marketing clauses in contracts between organizers and sponsors. The case of Pepsi Co., Inc. and Others. v. Hindustan Coca Cola Ltd. [15] exemplifies ambush marketing in India where the court issued a permanent injunction to the defendant by restraining its advertisements being broadcasted.


Conclusion


Law indeed plays a vital role in the growth of sport which has now changed into an industry and this role will be wholly perceived only if the convergence between the law and sport is appropriately understood. Due to the inclusion of enormous funds and economic value in the sports industry, several types of intellectual property rights act as a successful tool that empowers effective and complete monetization. All in all, as intellectual property rights play a silent yet significant role in the creation, protection and monetization of sports and activities associated with it, more comprehensive laws ought to be made to safeguard Intellectual Property, particularly relating to the sports industry. Furthermore, the use of alternative dispute resolution ought to be encouraged to settle legal disputes arising due to infringement IPR.


*The author is a law scholar from SVKM's Pravin Gandhi College of Law.


(The image used here is for representational purposes only)


References


1. Act 39 of 1970

2. Sharada Kalamadi. “Intellectual property and the business of sports management, Journal of Intellectual Property Rights, vol. 17, 18 July 2012, pp. 437 – 442, nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf

3. Sharada Kalamadi. “Intellectual property and the business of sports management”, Journal of Intellectual Property Rights, vol. 17, 18 July 2012, pp. 437 – 442, nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf

4. Zeecric Bureau, “UEFA opposes BCCI for violating trademark use of Champions League”, Zee news, Jan 02, 2009.

5. Simon Boyle, “David Beckham trademarks initials to use in hotels and restaurants – like pals Gary Neville and Ryan Giggs”, The Sun, 27 May 2020

6. Act 47 of 1999

7. Black’s Law Dictionary, ‘Intellectual Property’ (10th ed. 2014).

8. Sharada Kalamadi. “Intellectual property and the business of sports management”, Journal of Intellectual Property Rights, vol. 17, 18 July 2012, pp. 437 – 442, nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf

9. Act 14 of 1957

10. William Lattrice, Intellectual Property for Athletes, Technologies of Writing, 7(1-2), Spring 2010

11. Sharada Kalamadi. “Intellectual property and the business of sports management, Journal of Intellectual Property Rights, vol. 17, 18 July 2012, pp. 437 – 442, nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf

12. Garrett, Robert Alan and Hochberg, Philip R., "Sports Broadcasting and the Law," Indiana Law Journal, vol. 59, no. 2, Article 1, Spring 1984. www.repository.law.indiana.edu/ilj/vol59/iss2/1

13. Act 21 of 2000

14. Sandler D M & Shani D, “Olympic Sponsorship v. Ambush Marketing: Who gets the gold?”, Journal of Advertising Research, vol. 29, no. 4, (1989) 9.

15. 2003 (27) PTC 305 Del