Live sports events have a potentially huge economic value and nobody wants to invest in a sports event if they are unsure how much of their rights they will be able to safeguard in case of infringement. Lucy Rana examines the current situation.
While branding, merchandising and licensing go a long way in creating brand equity, they have also given an upswing to the corporatisation of sport.
Today it no longer is confined to the realms of entertainment and recreation but is at a significant point at which corporate honchos are often at loggerheads to sponsor major sporting events. In the multi-billion dollar sports industry where sponsors, broadcasters, players and partners each have certain exclusive rights, intellectual capital has become more pervasive than ever before.
This article attempts to explore the IP assets associated with sports and their protection in India.
International sports events offer innumerable marketing opportunities to the organisers, and sports franchisees are tapping the potential by venturing into non-conventional arenas such as merchandising, mobile applications, licensing, etc.
The protection of the intellectual assets has assumed more significance than ever before. Trademarks in the form of brand names, taglines, logos and slogans not only go a long way towards ensuring the financial health of the sports organisations (by way of endorsements and brand advertising), but are also the most commonly created and exploited IP assets.
The Indian Trademarks Act 1999 provides for the registration of device, brand, heading, label, ticket, name, signature, word, letter, and numeral, combination of colours in various classes of goods and services under which the proprietor intends to use his mark.
Under the act, an applicant can initiate both civil and criminal remedies in case of infringement. While registration enables the applicant to seek proprietary remedies, passing off actions can also be taken under the common law in case of unregistered trademarks.
The International Cricket Council (ICC) and the Board of Cricket Control in India (BCCI) so far have around 11 and 36 trademarks registered in their name in India. More than 500 applications have been cumulatively filed by IPL franchisees, and the figures clearly reflects that a trademark is continuously being used for development and marketing of sports organisations.
In the contemporary world, sports and sporting events have taken centre stage in the field of entertainment. The events are broadcasted worldwide and have a massive viewership. Every game becomes an important game and finds a spot or a broadcast home somewhere in the ever-expanding spectrum of cable and satellite television options. With so many outlets and so much content, copyright law in sports has become a complex matter with concerns relating to protecting IP rights steadily rising.
NBC’s ‘ownership’ of the Olympic Games may be quoted as an example to determine copyright law terms and agreements in sports in the true sense. The National Broadcasting Company and the Ancient Games might seem synonymous, with the broadcaster’s Peacock logo appearing along with the Olympic rings logo constantly.
However, it is pertinent to mention that NBC secured long- term broadcast rights to the Games only in 1996, which could be relinquished in the near future. Copyright law is undoubtedly driving major business, with large sums of money exchanging hands for the simple assurance of having the right to broadcast an intended sport or event.
The importance of sports law vis-à-vis copyright has naturally led to a rampant rise in infringement. To protect against such copyright infringement and piracy, the Indian Copyright Act, 1957 provides a number of remedies including injunctions, claiming damages and account of profits, seizure and destruction of infringing materials, etc. Further, the copyright statute also makes provisions for criminal sanction against infringers.
The one fact which cannot be ignored remains that live sports events involve a huge amount of economic value and nobody wants to invest in a sports event if they are unsure how much of their rights they will be able to safeguard in case of infringement. We need the law to be clear and in coordination with international norms.
Internet communication has become a potent tool for branding and sharing information. Today almost all major sports clubs have their own websites, and stars such as Sachin Tendulkar, Pete Sampras, Michael Schumacher and David Beckham have dedicated websites in their names.
The most frequent cause of disputes on the Internet has been the infringement of copyright and trademark rights. Online illicit activities include search engine marketing abuse, search engine optimisation manipulation, cybersquatting and typosquatting, not to mention trademark violations caused by deep linking, meta-tagging, banner advertising, framing, etc. The results of these sorts of infringement are the diversion of traffic to competing businesses and exploitation of the rights holder’s brand.
As there is no separate provision for registration of domain names in Indian law, brand owners usually rely on trademark laws protect their domain names. Besides the remedy offered by courts, the rights owners may also initiate proceeding with the .In Domain Name Dispute Resolution Policy (INDRP) which is available for complaints regarding any domain names within the .in and .co.in country code top-level domains (ccTLDs), and its decision is binding under the Arbitration and Conciliation Act, 1996.
The Indian Patent Act accords patent rights to novel products and processes involving inventive step and capable of industrial use. With respect to sports, applicants generally seek protection for a product or technical method. For instance, Puma had a patent for ‘a system for the determination of movement sequences in running events’ (165653) and EA Sports had a patent for ‘a leg guard for use in games’ (168143).
The Patent Act of 1970 provides for the enforcement of patents by way of suits for infringement. Both civil and criminal proceedings can be taken under the act.
A design protects the ornamental or aesthetic aspect of an article. As per the Indian Design Act, the article has to be new and original and, if registered, is accorded protection against unauthorised copying and imitation for a period of 10 years which can be further extended for another five years. Its significance in the IP law becomes more prominent if merchandising of sports goods and personality is also taken into consideration. As merchandising is a successful revenue generation model for sports clubs and teams, it is essential that as well as appropriate licensing agreements, all neighbouring IP rights are secured.
Class 21 of the Locarno Classification provides for registration of games, toys, tents and sporting goods. The graph below represents the articles registered in Class 21 in India.
As commercial interests in the sports industry are becoming increasingly prominent, the IP repertoire and portfolios of sports organisations will also grow.
This also means that organisers, broadcasters, and basically everyone involved in the commercial progress of the industry need to devise effective policies and regulations to check and curtail infringement. Regular IP audits and valuation would also help in identifying IP portfolios that need strengthening. Effective legislation and awareness among stakeholders is also needed to reinforce and expand the Indian IP laws with respect to sports.
Lucy Rana is a senior associate at SS Rana & Co in New Delhi. She can be contacted at: email@example.com
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live sports, India, branding, IP licensing, ICC