Intellectual Property Rights And Sports

INTRODUCTION

“Intellectual property underpins the many commercial relationships that exist in the world of sport, and offers enormous potential as a driver of economic development.” – Francis Gurry, WIPO Director-General [1: https://www.wipo.int/ip-sport/en/development.html]

There was a time when sports were considered to be mere recreational activities. It presented one with opportunities to demonstrate one’s skills and establish supremacy over opponents. Today, a sports activity is no longer restricted to its originating country; it is keenly enjoyed by people across the globe. The inherent concept of basic rivalry has been enhanced with the commercialization of sports. Today, the sports industry is a significant revenue-generating industry in the world. The global sports market reached a value of nearly $488.5 billion in 2018. This commercialisation has, in turn, increased employment prospects and development of infrastructure. There is a boost in tourism in countries hosting major international sports events. Considering this complex network, it is prudent to identify the underlying intellectual property rights of the individual components. [2: https://www.reuters.com/brandfeatures/venture-capital/article?id=108299]

Sports show intellectual property in action. A jersey, for instance, can be protected in various ways. The quick-dry technology used in making the fabric can be patented. Registering its design can help the company defend itself from counterfeits. Its trademark will help the customers to distinguish that particular jersey from other similar ones. Advertisements and jingles made for promoting the jersey can be copyrighted. [3: https://www.wipo.int/ip-sport/en/]

Today, intellectual property rights are used as tools to promote various games, sports clubs and teams all around the world. Take, for example, the Indian Premier League. In an already cricket-obsessed nation, the ‘gentlemen’s sport’ has become even more popular since 2008, thanks to the phenomenon called the IPL. All the official names, phrases, logos, designs etc. are protected by the law. These laws include the trademark and designs laws, copyright laws, telecommunications and broadcasting laws. IPL names and marks of previous and current editions, images and audio-visual footages, names and logos of the franchises, the trophy and even the official website are all subject to protection. This is essential for maintaining the reputation of the brand and protection of rights of the partners, broadcasters, sponsors and other stakeholders who have made IPL what it is. The organisers of other popular games like FIFA, NBA also conduct the tournaments in a similar manner.

Be it the Olympics or any other regional level sports event, protection of intellectual property rights is vital for the very existence of the sport. Sports is an intangible asset and different kinds of intellectual property rights help in the advancement of the sports industry. In this essay, the vital role of intellectual property in the world of sports is highlighted.

PATENTS

A patent is a document which grants exclusive rights to the owner of the patent to exploit the invention for his/her own use for a limited period. Ordinarily, this period is 20 years. Its purpose is to provide protection to technological advances and stimulate innovation. The story of the evolution of the sports industry would be incomplete without mentioning patents. A majority of the changes have taken place due to technological progress. New technologies aid in better performance of athletes. Naturally occurring materials like wood and rubber have been replaced with materials like ceramics and metals to make sports equipment. In the very beginning of basketball, this sport was played using a soccer ball and a fruit basket. In 1929, George L. Pierce was awarded the first patent for a ball uniquely designed for basketball. This new ball was easier to grip at the poles, which was an issue with the soccer ball originally used. Hiram B Rockhill received a patent for a holder for a bucket or basin the same year the game was invented. Similarly, the golf ball has also undergone transformations to be what it is today. William Taylor has the patent for dimple markings on golf balls, a design used till date. Due to such advancements, the players have been able to improve their performance. The LZR Racer is a line of competition swimsuits manufactured by Speedo which uses a high-tech swimwear fabric. This technology helped in increasing flexibility which aided in better performance of the swimmers. In fact, 94% of the Beijing Olympics swimming competitions were won by athletes wearing the LZR Racer. Ultimately, to prevent the integrity of the sport, the FINA (the international swimming federation) banned the high-tech swimsuits. [4: US1718305A https://patentimages.storage.googleapis.com/dd/55/48/7ce26b32dc4183/US1718305.pdf] [5: US451715A https://patentimages.storage.googleapis.com/6b/e8/0b/2d696e82a141c5/US451715.pdf] [6: US878254A https://patentimages.storage.googleapis.com/83/e7/b4/5d6d46d80b1bb4/US878254.pdf]

Patents equally protect the innovations made in athletic shoes. Until the 1960s, running shoes featured flat soles. Bill Bowerman, a running coach, experimented with his wife’s waffle maker to mould rubber spikes on the soles and designed a superior running shoe. Aptly named the Waffle Trainer, this pair of shoes launched a billion-dollar athletic company, Nike. This was the first major innovation of a company that is the top filer of sports-related international patent applications through WIPO. Other than shoes, wearable fitness trackers have also gained popularity and have been patented. As of 2019, FitBit, a popular fitness wearable brand, has been granted 293 US Patents. [7: https://www.wipo.int/pressroom/en/articles/2019/article_0006.html] [8: https://www.henrypatentfirm.com/blog/fitbit-patent-portfolio]

New technologies help referees and judges to take vital game decisions. Video assistant referee (VAR) is an important innovation in this aspect. For example, Hawk-Eye is a camera system which is used in numerous sports. It gives a bird’s eye view through cameras which are usually fitted under the stadium roof. It tracks the trajectory of the ball from various angles and helps in making decisions in an accurate manner. Similarly, the Decision review system (DRS) has also proved to be a reliable form of technology. [9: WO2001041884A1 https://patentimages.storage.googleapis.com/44/63/b6/0fc252f2da91e5/WO2001041884A1.pdf]

The patent law in India is governed by the Patents Act 1970. The fundamental criteria for patentability are more or less the same as the other national laws. Sections 3 and 4 mention exclusions that cannot be patented in India. Technology is one of the leading contributors to the growth of the sports industry in India. Although India has caught up with most of the technological trends in sports, it is not enough. The country has a long way to go in terms of coming up with new sports methods and granting patents to the same.

TRADEMARKS

Be it selling a product or rendering a service, branding undoubtedly has an important role to play. It helps to gain a competitive edge in the market and gain the consumers’ trust. This stands true even in matters of the sports industry. Sports clubs, associations, players and event organisers put in a lot of money and efforts to establish a brand name. Advertisements, sponsorship deals, product merchandising are some of the branding strategies used by major sports brands. With the advent of the internet, social media is also an effective tool to increase the popularity of the brand. With the increase in the number of ways to strengthen a brand, there is a need for its protection too. This is where trademarks come into play. A trademark is a distinctive word, name or a symbol which represents a company. It helps the company to gain customer loyalty and stay in the game. For example, Nike’s ‘swoosh’ symbol and the tagline “JUST DO IT” has helped in establishing a valuable relationship between the brand and the customer.

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Sports associations and teams all around the world typically bear a distinctive logo and an official name which can be registered, further adding to the brand value. International protection can be sought by filing an application under the WIPO Madrid System. In India, trademarks are governed by the Trademarks Act, 1999. Under the Act, various classes are categorized as per different categories of goods and products. For example, Manchester United sells souvenirs like keychains, mugs, etc. In India, keychains and mugs can be registered under Class 6 and 21 respectively.

Die-hard sports fans are always looking out for means to express their love for their favourite teams and athletes. Popular sports teams and associations capitalize on this intense loyalty through licensing. There is a contract between a sports organisation and a third party by which the latter acquires the license to use, on its products, the official trademark of the former. The 2018 FIFA World Cup wave brought along with it a surge in demand for official merchandise. In India, Alcis Sports had a tie-up with FIFA to exclusively manufacture and distribute merchandise. The unlicensed and unauthorised use of the official trademark is actionable. If any other person or company sells products bearing marks that are similar to the official trademark of a sports team, it constitutes an infringement of the trademark.

Sponsorships and endorsement deals also help in increasing brand awareness. An association with sports entities helps increase the goodwill and consequently the sales of the company. Over the last few years, there is an increase in sports sponsorship in India due to various sports tournaments. BYJU’s, a leading learning app, has replaced Oppo to become the official jersey sponsor of the Indian cricket team. This means the official team jersey shall bear the name BYJU’s. There is a steady rise in the number of athlete endorsements too. For instance, Puma has signed an endorsement deal with Mary Kom, making her the face of the brand in the country. This association will help Puma increase its customer base in India, especially among women. An athlete enjoys personality rights which enable him to control the commercial use of his physical attributes. In India and the UK, there is no specific legislation protecting personality per se. However, the High Courts do recognize this right and have emphasised on the protection of the same in various judgements. The Delhi High Court laid down in ICC Development (International)Ltd v Arvee Enterprises and Anr that the right to publicity vests in an individual and not an organisation. [10: 2003 (26) PTC 245]

COPYRIGHTS

Copyright protects the expression of an idea. It provides protection to literary works, artistic works, dramatic works, musicals, sound recordings and even cinematographic films. The Copyright Act is a crucial part of sports brands. Every sports team or association has its own logo, mascot, and tagline. The artwork in the logo and mascot, the literature contained in taglines and catchphrases can be protected under the Act. Posters, team photographs and even mobile applications are copyrightable. Clubs and organisations exploit their copyrighted material to enhance their brand value. Although registration of copyright is not mandatory in India, to claim remedies for infringement, registration is required.

Due to the rising popularity of sports, it is presently considered to constitute a key source of entertainment. Since not everyone can watch a match in the stadium, the match is directly brought to them, thanks to technology. The first broadcast of a sports event was a radio broadcast which took place in the United States. Since then, broadcasting technology has come a long way. Today, one can watch live matches online on social media platforms and various streaming services. The sale of broadcasting and media rights contributes to the revenue of sports organisations. These organisers utilise the revenue earned to improve various sports facilities. Moreover, broadcasting companies pay a generous amount of money to the organisers to bag exclusive broadcasting rights in a region. The broadcasters are benefitted by Television Rating Points (TRPs) and the resultant gain in advertising revenue. These companies, in turn, sell their exclusive footage to other media outlets for royalty. In India, Doordarshan was the lone player in the broadcasting game. This changed with the expansion of the Indian economy when sports broadcasting was opened up to other private channels. Today, Star Sports and Sony Pictures Network (SPN) mainly dominate the Indian broadcasting market by covering sports events of all kinds and levels.

The judicial position of sports broadcasting rights in India has been analysed by the courts in various cases. In The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the Supreme Court had to decide whether an organiser of an event enjoys the right to grant exclusive broadcasting rights to an agency of his choice, whether private or national. In its judgement, the Court recognised the right of the defendant to enter into broadcasting contracts with broadcasters other than Doordarshan. It held that airwaves are not the property of the Indian government and any Indian citizen wanting to use them should be allowed to do so. In Citizen, Consumer & Civic Action Group and others v Prasar Bharati and Others, the issue of mandatory sharing of sports broadcasting signals came into light. Private broadcasters have to mandatorily share signals of exclusively obtained sports events of national importance so that the public broadcaster can retransmit them. In the above case, Ten Sports had acquired exclusive global broadcasting rights for India-Pakistan cricket series and did not share its broadcasting signals with Doordarshan. The Madras High Court ordered Ten Sports to transmit the sports event through Doordarshan by retaining its logo and in exchange, Doordarshan has to pay a mutually decided remuneration. The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act was passed in 2007. It provides that broadcasting service providers should simultaneously share the live broadcast signals without advertisements with Prasar Bharati. In Union of India v. Board of Control for Cricket in India, the Supreme Court held that though private broadcasters have to mandatorily share their signals with Doordarshan, the latter cannot retransmit the signals on other private networks. [11: AIR 1995 SC 1236, 1995 SCC (2) 161] [12: (2006)5CompLJ74(Mad)]

Under the Indian Copyright Act, 1957, there are no specific provisions related to the protection of live sports events. However, a live sports event can be interpreted to be a cinematographic work as defined in Section 2(f) of the Act. Whether or not a live sports telecast is copyright-material is a question to which there is no satisfactory answer. In ESPN Star Sports v. Global Broadcast News Ltd, Justice Ravindra Bhat treated copyright and broadcast reproduction rights to be equal. The Delhi High Court held that although the rights are akin to each other, they operated in separate fields. [13: MIPR 2008 (2) 75]

CONCLUSION

Patents encourage and protect technological innovations. Trademarks help in protecting the identity of a sports brand. Copyrights and related rights of the broadcasters help in expanding the reach of sports globally. The incentives given to the creators and innovators accelerate the development of the sports industry. If such protection and incentives are absent, the sports industry would not have evolved to what it is today. The global sports industry, hence, is largely dependent on the protection of intellectual property rights.

Presently, there is a wide array of legislations governing the protection of such rights internationally as well as within the country. These legislations provide for civil and criminal remedies in case of infringement. Despite this, some practices threaten to infringe one’s rights as an owner of intellectual property. The menace of patent trolling is becoming increasingly common in the sports industry. Also called a non-practising entity (NPE), a patent troll buys generalised patents and files infringement lawsuits against companies actually using the patent. For instance, SportBrain Holdings filed infringement suits against major sports companies like Adidas and Runtastic. Although the Indian Patent Act significantly prohibit NPEs, the provisions are not strong enough to curb the practice altogether. Ambush marketing is another problem prevalent in the sports industry. It takes place when an unauthorised entity associates itself to a sporting event at the cost of the official sponsor. Countries like England and China and New Zealand have enacted laws related to ambush marketing. However, India is yet to do so.

The Indian sports industry has room for more improvement. Enacting legislation specifically designed for the sports arena may prove to be just the push required. The legislation should expressly recognise the rights of all stakeholders and protect their specific interests. The punishment for infringement must be stringent enough to deter prospective offenders. India has been and shall continue to be a host for huge international sports events. By strengthening its