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Study Of Intellectual Property Laws In Sports Industry Specifically Focusing On Copyright And Trademark

Intellectual property rights in sports industry has been an under looked area from long. This project focuses upon the existing Intellectual property laws in sports industry and their applicability. Here in this study the laws in context of sports and sporting events are discussed in detail with regard to existing Intellectual property rights in India such as Trademarks, Patents, Copy right, Trade Secrets, Design, Broadcasting rights, Ambush marketing etc.

The scope of the project is mainly limited to India therefore the discussion is routed towards the usage of Intellectual property rights in context with sports industry. Main highlights here are the applications and usage of the laws and its flaws in system according to its application. Although the problems mentioned here are universal in nature but they are discussed individually in view of sports industry that gives a strong basis for the adaptation for new laws and points to the scope of making amendments in existing laws.

"Sports have always been an important part of human social existence. It is so deep-rooted in our lives and has become a great source of our entertainment. However, today sports have transcended from entertainment or leisure and have now gained commercial and economic significance especially in the United States, India, United Kingdom and all through the European countries. Through merchandising, promotion, marketing, franchising and brand building of professional sports clubs/teams, these teams in these countries have now become more economically significant and viable and have assumed the influences associated only with multinational companies.

There has been an evolution of the most popular sports, such as cricket, football, hockey, baseball, tennis, basket, car racing, and so on into mega international events. They have also evolved into profitable domestic sports events like Indian Premier League (IPL), Major League Soccer (MLS), the English Premier League (EPL), The Spanish La Liga. The organisers of these sporting events on the international level have been able to reap immense financial rewards by inter alia exploiting and leveraging on aggressive marketing campaign taking advantage of the marketable potentials resident in these sports.

Therefore it has only become sound for professional sports teams and corporations to exploit and capitalize on intellectual property rights. These intellectual property rights are usually exploited via merchandising, advertisement, exclusive and non-exclusive licenses, broadcast rights and so on and so forth."

In this project, the author will identify and examine the relationship between Intellectual Property laws and the sports industry limiting the study to Trademark and Copyright laws in India, highlighting the grey areas in the IP legislations with respect to sports industry.

Copyright, Broadcasters Right and Social Media

"Copyright in sports is protected in India under the provisions of the Copyright Act 1957, vests in various components of sporting events which includes the artwork connected to the promotions, slogans, images of a player, event etc. Advancement in communication technologies such as satellites, cable, broadband, and mobile internet have revolutionized broadcast and sports coverage and in turn enabled people around the world to take part in the excitement of major sports events.

Copyrights along with Neighbouring rights provide protection against unauthorized broadcasts and underpin the relationship between sports and television media. For the exclusive right to broadcast sporting events live, the media organizations pay huge sum of money.[1]

India has signed Berne Convention of 1906 for the Protection of Literary and Artistic Works and the International Copyright Order, 1999. Though the fact that the registration of copyright is not mandatory in India and is comparatively easy to protect under the Indian laws, it is advisable to register the copyright in India as the copyright registration certificate is accepted as a proof of ownership of copyrights in courts and by enforcement authorities[2]."

Social media platforms have revolutionized the way fans receive sports content. Right owners in the sports business and their business partners are facing emergent challenges in the ever growing social media background of vines, GIFs, live streaming and piracy. contemporary technology makes it easier to replicate and distribute forged goods. regrettably, the law has been slow to pull alongside the speed of technological development.[3]

Issues arise when a person who is watching a match/sports event with a valid ticket takes photographs and videos and uses them to mint money out of it i.e. by selling them or uploading it on internet or by going live on their website.

Now the question is whether it is not an infringement of broadcasting rights of the authorised broadcaster? If we go by the definition of the broadcast which is given under sec 2(dd) of The Copyright Act 1957, it means communication to the public:
  1. By any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
  2. By wire, and includes a re-broadcast.

And communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.[4]

Therefore it is clear that the uploading of video by a person sitting in the stadium is a broadcast and thereby a violation of broadcasters right. So the grey area here is how to stop people from photographing and recording in the stadium.

Secondly who will have copyright over those photographs and videos? The answer to this question is obvious the person who is recording or photographing will have copyright over it. But is it justifiable? The ticket he purchased is only for watching the match and not for recording or photographing for his commercial interest.

Thirdly when a person is downloading the videos uploaded on the authorised broadcaster's website and sharing/uploading it on his website the substantial part of the event will it be regarded as copyright infringement? (Some websites are paid on the basis of number of hits/day)

Fourthly whether the streaming of live match in pubs/bars/restaurants on the big screen without the due permission for disseminating the live broadcast will not amount to infringement of broadcaster's right? The subscription which they have taken is only for their personal use and not for commercial consumption. By showing the live match they are inviting the fans i.e. using the live broadcast of sports for their own commercial interest, will it be considered as infringement of broadcasting rights and their copyright? Clearly the present Indian Copyright law does not address these issues.

Another major issue is Broadcasters rights do not protect copyright in the work. Rights of broadcasting organisations envisaged by the Indian Copyright Act 1957 as amended in 1994 are a set of exclusive rights given to broadcasters. These rights are essentially neighbouring rights, which do not protect the copyright in the work but the broadcast itself[5].

As held in Espn Star Sports v Global Broadcast News Ltd. and Ors[6], Section 13 and 14 of the Copyright Act, makes it clear that copyright will subsist only in work. 'Work' does not include 'broadcast'. As a result there will only be a broadcasters right in the telecast of live events communicated to the public as provided under Section 37 of the Copyright Act, which is separate and distinct from copyright.

Therefore, the Broadcast Reproduction Right, which is different from Copyright, is with the Broadcasting Organization which is causing the Broadcast to be communicated to the public under their Logo by any means of wireless diffusion or by wire, as per the Definition of Broadcast under Section 2(dd) and the definition of the Communication to Public under Section 2(ff) of the Act.

As such Section 61 is not applicable in a proceeding for infringement of Broadcasting Reproduction Right as that provision is only limited to the cases where an exclusive licensee of a copyright institutes a suit or proceeding for infringement of copyright.[7]

Broadcasters of sports events in the UK enjoy copyright protection in transmitted programmes as broadcast works. Fans videoing, editing, uploading and/or distributing clips of sporting action from live footage may therefore be infringing the broadcaster's copyright.[8] However, the same is not the case in India.

Trademark with reference to Personality Rights, Merchandise Counterfeiting and Ambush Marketing
Symbols and Team names (Rajasthan Royals, Mumbai Indians) create a level of association with the public and fan followers and help the popularity ratings of any given team, club, and players.

Personality rights

"As sports have developed into a global business, so too has the significance of athletes' image rights. Due to their celebrity class, even the names of players such as Sachin Tendulkar, Dhoni, etc, attain the status of trademarks. Businesses associate their products and imagery with celebrities and support sporting events. Celebrity athletes have personality rights otherwise known as the right of publicity which stops not permitted use of their names and other individual attributes. This brand image and reputation is then converted into financial profits through ads, brand ambassadors, goodwill and status of sponsors.

In India, personality rights are by itself not recognized. They are normally invoked through Right to Privacy provided under Article 21 of the Indian Constitution or through Right to Publicity surmised from Article 19 of the Indian Constitution. Personality rights are either protected as right to privacy or as the property of an individual.[9]

For protecting their trademarks in Indian courts, it is desirable that the organizers, team owners and sports gear manufacturers must opt for registration of their team names, logos, venues, captions, taglines and slogans as trademarks under the Trade Marks Act 1999. Also there should be an initiative on the part of the players to register their names, photographs and caricatures as trademarks.

If without the consent or license of the respective owners of trademarks, a third party who is not authorised uses trademark which results in damage to the goodwill and reputation of the stakeholders, it amounts to dilution of goodwill and reputation, unfair trade practice, unfair competition."

Merchandise counterfeiting

"The Trade Marks Act 1999 provides both civil and criminal remedies and which are simultaneously available against infringement and passing off action. In India Registration of trademarks are not mandatory, people who seeks protection can enforce their rights in the court of law and interestingly violation of a trademark is a cognizable offence in India and therefore criminal proceedings can be initiated against the accused[10].

This kind of enforcement mechanisms are expected to boost the protection of trademarks and to reduce infringement in trademarks in India. But in reality many of the sports merchandise is sold without any authorization from the team/club owner. "

Of course, the fight against counterfeiting does not end once a mark is registered. Lack of protection and enforcement leads to counterfeiting of products, which has gained momentum in India as tournaments such as IPL continues to grow in popularity.

Small shops in every nook and corner of cities in India can be found selling unauthorised cigarette lighters, merchandise, stationary, flags etc. with IPL team or other international teams, European football clubs logos on them. For example in 2017, a sports goods seller in Chakarpur was arrested by Gurugram police for allegedly selling fake footballs of Nivia brand, in a rare usage of the intellectual property laws. He was booked for cheating and violation of the Indian Trade Marks Act.[11] This was apparently the first time the Indian Trade Marks Act was used to seize fake footballs in the capital city.

In the case of Skechers Usa Inc & Ors v. Pure Play Sports the plaintiffs offer footwear in distinct categories, one of them being 'SKECHERS GOwalk footwear' line that was introduced and launched in 2011.The plaintiffs claimed that their product reflects a combination of style, comfort, quality and value that appeals to a broad range of customers. The plaintiffs claimed that the defendant had introduced and were marketing footwear that was an exact replica and lookalike of the footwear designed, sold and marketed by plaintiffs under GOwalk 3 series. Ultimately, the Delhi HC granted an ad interim injunction in favor of plaintiffs. [12]

There are a number of ways in which a company or a franchise can protect its IP and fight counterfeiting. Many IPL franchises have created anti-counterfeiting positions within the company. One of the greatest problems which they face is to gather information and to be aware of infringing activities.

Thus it can be argued that the police can raid those shops which are selling such merchandise and seize the infringing material but the law does not address the scenario where the same thing is sold from abroad through e-commerce websites. Clearly there is no provision in that regard in the Trade Marks Act 1999.

Ambush Marketing

Now moving further to the Ambush marketing which is not a very known concept in the industry but a very important aspect in protecting the brand name.

"Ambush Marketing means 'an attack from hidden position'. Protection against ambush marketing is one of the most important aspects of Intellectual Property Rights in sports. Ambush marketing has acquired a huge space in sporting events and it refers to companies promoting their brands or products by associating them with a team, league or event without paying for the privilege.[13] In the absence of any specific law in this regard courts find it difficult to deal with the issue arises in the sports industry with regard to ambush marketing."

Unfortunately there are no laws regarding ambush marketing in India, and this has been taken advantage of by many advertisers, with sports leagues such as the IPL having no tools with which to fight back. For instance with the starting of the IPL season or cricket world cup different restaurants, hotels, e-commerce websites starts giving lucrative discounts and offers which can be availed by applying coupon code which includes name of the league/event i.e. for example 'IPL20' for 20% off on merchandise on Printavenue or 'HAPPYIPL' used by Ola or 'YOCWC' used by Yo China!

Moreover these coupons are not advertised rather sent to the specific person by mail or SMS. "In one case, Life Insurance Company (LIC) launched an advertisement with the tag line 'predict and win' during the fifth edition of the IPL in 2012. The advertising campaign featured questions about the IPL, such as which four teams will play in the semifinals of IPL 2012? LIC was not an official sponsor of the IPL event and had not paid any sponsorship money for launching such an advertisement. It was a clear-cut case of ambush marketing, but since the laws were absent, the IPL organizers had no remedy.

In another instance, Indian consumer goods company Parle Agro, which was not the official sponsor for the IPL event, launched the Indian Food League (IFL) website for its popular snacks brand Hippo. The campaign was based on the Indian Premier League viewer's choice award of teams, with viewers of the website choosing their favourite food dish from a particular region and whichever region got the highest number of votes won the IFL.[14]"

"The creativity of these ambushers makes it necessary to adopt specific national legislation in order to prevent ambush marketing and also to implement strategies to counter the threat of ambush campaigns by securing trademarks, copyright registrations for all images, logos in sports events by entering into contractual obligations with explicit terms and conditions for the use of these Intellectual property rights. Many countries have already considered specific ambush marketing legislations.

The International Olympic committee (IOC) has adopted the naming and shaming technique in the fight against ambush marketing. This technique or procedure involves the announcement of corporations guilty of ambush marketing at public press conferences. The IOC also insists that host countries enact domestic laws to protect IPRs associated with the Olympic Games. Another scheme adopted by the IOC is its insistence on the promulgation of domestic legislations to ensure the protection of intellectual property rights of the Olympic Games especially trademarks and sports events marks and by extension give the exclusive rights of association to the sponsors of the Games."

Conclusion and Suggestions
Intellectual Property violations in with regard to Trademark, Copyright, Design, Patents etc. are inevitable as sports industry is commercialized. Intellectual Property Rights along with the legal protection helps to secure the economic value of sports. Commercial exploitation of the diverse species of intellectual property rights would not only result in an upward drive of the economic progression of the various domestic sports associations/sports events organisers but would also increase the individual profit margins of individual sportsmen in the country while attracting international interest and foreign investment. The author would now like to give suggestions with regard to filling the gaps of the grey areas which were highlighted above.
  • The problem of people taking photographs/videos and going live on internet can be taken care of by mentioning in the terms and condition of the ticket that photography and recording is prohibited in the stadium. Also there can be prohibition within the Ground of any equipment, which is capable of recording or transmitting (by digital or other means) any audio, visual or audio-visual material or any information or data in relation to the Match or the Ground.
     
  • Those Cafes, bars, pubs, restaurants and similar establishments who telecast the live matches do it as a practice to boost their sales by attracting more visitors, can be restrained from, in any manner, exhibiting, communicating to the public, making available for viewing and/or publicly performing the live matches, without obtaining a licence from the broadcasters or event organisers.

    A clause to the same effect i.e. prohibiting the illegal telecasting of live sporting events should be inserted in the copyright law with the ambush marketing clause. Power must be given to the police officials/law enforcement agencies to visit premises either suo moto or when intimated to them by the organisers / broadcasters / anyone about the infringing activity taking place in the cities they are posted in, including premises of the identified infringers, as well as the other unknown infringers.
     
  • India should frame legislation for personality rights and also try to build a successful sponsorship program so as to protect the image and status of athletes/players of our country like other countries of the world.
     
  • To stop counterfeiting teams/clubs should gather information and to be aware of infringing activities, through the use of various monitoring services to detect infringement as well as monitoring websites closely in light of the large and growing number of websites engaged in the business of counterfeiting.
     
  • In addition to information gathering, these internal teams should also work closely with government officials to fight infringement. Customs is an important part of any IP protection plan in India and offers several tools to help rights holders. The Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 introduced a recordal system to strengthen border enforcement with the objective of preventing the entry of counterfeit goods into the country.

    Rights holders should take advantage of this mechanism and register marks with Customs offices to prevent the movement of counterfeit goods into the country. In addition to Customs, rights holders should also work closely with local law enforcement officials.
     
  • Given India's large population, rights holders should also build relationships with the public in its fight against counterfeits i.e., by educating consumers and holding workshops on what are fake products and how they dilute brands.
     
  • Coming to the Ambush Marketing, it would also be immensely beneficial for anti-ambush marketing clauses to be introduced in each of these individual IPRs and additionally sui generis a new anti-ambushing Law should be enacted to cover every IPR.

    The adoption of these measures would not only encourage indigenous businesses to invest and innovate within the Indian sports industry but will also encourage foreign investors and sponsors to invest in the Indian sports sector in general and sports events, with such statutes in place it would suggest to the international business community that their investments and IPRs would be secured.

India needs a specific legislation which deals with Sports Industry in general and intellectual property rights arise in sports industry in particular. This Law would be in the shape of a unique sports proprietary right to protect innovation and creativity in Indian sports.

End-Notes:
  1. Sujith Aswathy, 'Sports And Intellectual Property Rights � An Overview On The Indian Standards' (2016) 2 Journal Of Legal Studies And Research accessed 14 February 2019.
  2. Copyright Act 1957, s 48.
  3. Tanya Dunbar, 'Combating Online Trademark and Copyright Infringement: ICE and DOJ Domain Name Seizures New Tools In the Government's Efforts to Combat Online IP Infringement' (2012) 2 Pace IP Sports & Entertainment Law Forum < http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1006&context=pipself > accessed 14 February 2019.
  4. Copyright Act 1957, s 2(ff).
  5. Atharva Sontakke and Himaja Bhatt, 'Scope of Rights of Broadcasting Organisations under Copyright Act, 1957' (2014) 1(1) RGNUL Student Law Review accessed 14 February 2019.
  6. Espn Star Sports v Global Broadcast News Ltd. and Ors 2008 (36) PTC 492 Del.
  7. id (n 5) 18.
  8. Jonny Madill and Jack Jones, 'Sharing Sports Clips in the Digital Age: 6 Things You Should Know' (2016) LawInSport accessed 14 February 2019.
  9. Zoya Nafis, 'Personality Rights - Need For A Clear Legislaton - Privacy Protection - India' (Mondaq.com, 2014) accessed 14 February 2019.
  10. Trademarks Act, 1999.
  11. TNN, 'Sports goods seller held for selling fake footballs' Times of India (Noida, 27 Jan 2017) accessed 14 February 2019.
  12. Skechers Usa Inc & Ors v. Pure Play Sports 2016 (231) DLT 299.
  13. Prashant R Sharma, 'Ambush Marketing- The Concept' (2015) 2(4) International Multidisciplinary Research Journal accessed 14 February 2019.
  14. Seema Kadam, 'A Study of Ambush Marketing with reference to Indian Premier League' in Snehal H Mistry (ed), Emerging Trends in Business (CK Pithawalla Institute of Management, Surat 2014) 265 accessed 14 February 2019.

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