INTRODUCTION
The human body was design for physical labor. Since the pre-historic era, Sapiens were known to indulge in activities like hunting and resettling. Time evolved and so did our idea of physical recreational activities. Thus, games and sports were born. Sports have evolved to a large extent. This growth attracted a lot of opportunities, sources of income, investments, and resources. Sports have turned into business ideas. These ideas bring the sense of their protection. Intellectual Property Rights plays a very strong role in the protection of ownership and creation in the world of sports. These rights work as an incentive to the individual for new ideas and creations. Intellectual Property Rights lives in most of the components of the sports industry.
India is a party to the World Intellectual Property Organization (WIPO). It is a Geneva based specialized wing of the United Nations. WIPO also promotes innovation and creativity for the development of economic, social, and cultural aspects of its parties. It dedicatedly works on methods for protecting every part of Intellectual Property viz. patents, copyrights, trademarks, designs and also ensure the goodwill of the sports field. Intellectual property carries commercial value for sporting clubs and organizations and covers the range of intangible assets covered by copyright, trademarks, designs.[1]
INTELLECTUAL PROPERTY IN THE WORLD OF SPORTS
I. BRANDING
Branding is essential for commercialization purposes. It is an efficient and valuable marketing tool for most of the companies. Everything from sports, teams, sponsors, and partnerships with broadcasting and media are branded for monetary gains. Branding attracts the Intellectual Property Rights. Several football clubs such as Manchester United, Real Madrid, Barcelona, and Liverpool are a perfect example of intellectual property brand capitalization.[2]
India’s sting with branding is bring about by the successful organization of the Formula One Race. Corporates showed immense commercial interest in branding of this event. India was is in par with the world due to the organization of this event. This led to more focus on laws relating to sports and Intellectual Property that would create branding and generate revenue.
II. AMBUSH MARKETING
Where there is good, there is evil. One such faulty but important aspect of the Intellectual Property Rights and Sports industry is “Ambush Marketing” or “an attack from hidden position”. It refers to a scenario where a company promotes its brands or products through association with a team, league, or event and does not pay for the privileges.[3] It occurs without consent or proper authorization of the necessary parties.[4] Sadly, there is no concrete law in India to prevent ambush marketing.
A highly noted case in this reference is Pepsi and Coca Cola in Pepsi Co., Inc. and Others. vs Hindustan Coca Cola Ltd. and Another[5]. The Delhi court issue a permanent injunction to the defendant by restraining its advertisements being broadcast. The use of the website www.commonwealthgamesdelhi2010.org it also restrain the use of logos which was deceptively similar to that of the plaintiff.
III. COPYRIGHTS
In India, copyright in sports is under the protection of ambit of the Copyright Act, 1957. Growth in technology like cable, internet, broadband, etc. made a big difference in coverage and broadcasting of sports. Branding, marketing, and advertisement further extend the need for copyright laws to be place for the protection of intellectual properties. Copyright is protected from the time the work is created. This is the most used aspect of Intellectual Property Rights used in sporting events.
The Copyright Act, 1957 recognizes the broadcasting of sports. This concept is more than twenty-five years old. It gives rights to the company with a broadcasting license to re-broadcast an event that already broadcasted.
International View:
The conditions required for protection under the Copyrights Act of 1976 of the US Federal law are:
- Work must be tangible: work created must be permanent and fix. In the case of Merchandising Corporation v. Harpbond[6], the Court held that tattoos on the face do not account for tangible form. Thus, it is not protect under the Act. Therefore, it can be inferred that “sport moves” also, does not fall under the scope of tangible form and so is not protected.
- Work must be original: Creation of only new and not copied or adapted is acceptable.[7]
- Work must be creative.
- The work must be within the subject matter of Copyright.
In the United Kingdom, the S.1(1) of the UK Copyright Designs and Patents Act, 1988 (CDPA) states that the copyright shall include original literary, dramatic, musical, or artistic works. The matter which is of utmost importance is that the work must be “original”.
Case law & CDPA definition
In Ladbroke (Football) Ltd. vs. William Hill (Football) Ltd[8], the Court held that the value of a work as a whole must be assessed when the claim to originality is being assessed. In the case of Interlego AG v. Tyco Industries Inc[9]., the Court captured the essence of the copyright that only the expression of an idea is protected under the act and not the idea per se. creator must use his skill and creativity. It also affirms that the sport moves do not come under its ambit.
The CDPA does not define the term “performer”. However, the term “performance” is defined under Section 180(2). It consists of a dramatic performance (including a dance or mime), a musical one, reading or recitation of a literary work, or a performance of a variety act or any similar presentation. The conflict is whether sportspersons are “performers” as per the Act. The sportspersons can fall under the scope of performance through the application of the maxim “ejusdem generis” while interpreting Section 180(2).
IV. TRADEMARK
In India, trademarks in the field of sports are protect under the provisions of the Trademarks Act,1999. Growth of branding led to massive use of logos, pictures, tag lines, brand names, team names, etc. These aspects are protected under the Trademark Act of India. These trademarks help in creating a level of association with the public. This further aids in adding up to the brand value of teams, clubs, sportspersons, etc. This brand value works as goodwill and monetary gains.
Entities seek to make a connection and association between their sports teams and the public. A name plays a very vital role in giving a team its distant identity and makes it easier for the public to associate with the teams. Thus, names like Real Madrid, Mumbai Indians, Kolkata Riders are given. Athlete’s image rights have grown along with the rise of sports as a business.[10]
Both civil and criminal remedies are available against infringement and passing off of Trademarks in India. One need not register their trademark to seek redressal as registration of trademarks are not mandatory in India. people can seek protection directly through dispute resolution. Violation is however consider as a cognizable offense.
DOMAIN NAME:
Domain names have a substantial role in the protection of intellectual property rights in the sports industry. It creates an image of the brand and creates its value. It eases portability and search engine optimization. WIPO has a swift dispute resolution procedure for the website domain names. These rules are accepted worldwide[11]
V. PATENTS
Protection of inventions in the field of sports is dealt with under The Patents Act, 1970. Inventors have obtained patents for a method of fitness training[12] and method of putting golf balls[13]. Patents can give a competitive advantage to the teams or leagues. Acquiring patents is a tedious process. The application has to crisp and precise and the investor has to approach a proper patent agent for such registration. Just like trademarks, patents also attract both civil and criminal remedies.
CONCLUSION
Intellectual Property Rights are a necessity in the business of sports. Sports are generating immense commercial gains. It a field that is here to stay in the hearts of its followers. Legal protection of the intangible assets relating sports shall aid in securing the economic value of sports and shall increase the monetary returns. Intellectual Property also ensures fair-play. It protects the rightful creators and owners.
India needs to legislate crisp and precise laws regarding the role of Intellectual Property Rights in sports. Strong legislative frameworks work as building blocks for the upliftment of the nation.
References:
[1] https://sportandrecreation.nsw.gov.au/clubs/ryc/legal/intellectualproperty.
[2]http://www.mondaq.com/india/x/164974/Trademark/Intellectual+Property+Rights+In+SportsIndian+Perspectiv e.
[3] http://blog.ip.com/2012/02/intellectual-property-rights-in-sports
[4] Sandler D M & Shani D, Olympic sponsorship Marketing. Who gets the gold? Journal of Research,29(4)(1989)9.
[5] [2003 (27) PTC 305 Del]
[6] Merchandising Corporation v Harpbond [1971] 2 All E.R. 657
[7] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
[8] Ladbroke v William Hill [1964] 1 All ER 465
[9] nterlego AG v Tyco Industries Inc ([1989] AC 217,
[10] http://iipi.org/wp-content/uploads/2010/07/Sporting_Events_and_Intellectual_Property.pdf
[11] http://www.wipo.int/ip-sport/en/branding.html
[12] US Patent No. 6,190,291
[13] US Patent No. 56,16,089
0 Comments