The Role Of IP In Sports In India
Author: Nandini Tripathy, Symbiosis Law School, Hyderabad
Abstract
Commercialization of Sports is one of the most promising areas which have added to individual gains and contributed to the economic growth of the country. Today Intellectual Property Rights are used as marketing tools toward the branding of games and connected events, sports clubs, teams, celebrity status which all in turn require protection to prevent any complications that may arise in future. In the sports industry, a sequence of title has relevance in sports agreements which incorporate the legal release of the talent of the sportsman, in order that their work, images, personality rights, etc., can be used by another for profit. This article examines the role of IP in sports.
Introduction:
In sports leagues like the Indian Premier League (IPL), Hockey India League, Indian Badminton League, Pro-Kabaddi, Indian Super League, various teams have been formed, which are owned by individuals or partners. Teams are sold to other individuals or partners and in such an occasion the chain of title becomes a problem , so as to determine the title in trademark, copyright and various other IPRs which may form a part of such an event. Various acts of infringements or unauthorized use of IP eventually lead to IP disputes. [1]
With an increase in the commercial exploration of IPR in sports, various legal issues that can arise in the sports industry include infringement of trademarks, brand abuse, misbranding, misuse in bad faith, using the name of a sports personality without permission or without paying any license fee or royalty; copyright infringement with regard to the copyrighted merchandise, sports equipment’s, artwork in logo, broadcasting without license, piracy in audio-visual recordings, infringement in promotional material used, use of copyrighted software without license or royalty; infringement of design, use of design without license, use of design for promotion of other goods; and in case of patents, the use of patented technology without authorization from the owner of the patent.
The above-mentioned issues can lead to damage of goodwill, unfair trade practices, unfair competition and commercial disputes which ultimately lead to huge commercial losses which in turn defeats the principal purpose of exploring the commercial aspect of the sports industry.
Trademarks
Sport shows intellectual property (IP) in action. Patents encourage technological advances that result in better sporting gears thereby leading to better sporting events. Trademarks and designs contribute to the distinct identity of not just the events but the teams and players appearances
Trademark is one among the foremost commonly created IP related to sports. It contributed in the building of brands in the sports business. [2]Trademarks are protected in India under the provisions of Trademarks Act, 1999 with the presence of features like a logo, captions, taglines, slogans, and team names, etc. that which are collectively referred as trademarks and that hold commercial value as they create a level of association with public and fan following and that which are essential for brand value creation in sports teams, clubs, sponsors, and athletes.
The names of the franchise, tag lines, etc. capable of being registered as trademarks further assist brand building. Due to the celebrity status, even the names of the players (Sachin Tendulkar, Dhoni) has acquired the status of trademarks. Businesses link their products and images with celebrities and support sporting events. Celebrity athletes have personality rights, also known as the right of publicity which prevents unauthorized use of their names and other personal attributes. The brand image and popularity convert into monetary profits through advertisements, brand ambassadors, goodwill, and reputation of sponsors.
Domain names in sports which are also treated as trademarks by Indian courts play a substantial role in protection of Intellectual Property Rights associated with sports. Domain names build brand image, portability, and search engine optimization.The right to control the commercial exploitation of one’s name, image, likeness, or any other aspect of personal identity is the idea of personality rights. Personality rights of a sportsperson play an important role in the brand creation of individual sports players and teams. Celebrity status leads to various forms of image creation, brand endorsement, and revenue generation exploiting the fame factor.[3]
Character merchandising is also becoming a massive revenue-making business. In simple words, the marketing of a name or an image for monetary gain by using a celebrity’s persona or public image is known as ‘character merchandising’. Lot of brands have associated themselves with some sportsmen as that of Michael Jordan and Nike, Sachin Tendulkar, and Adidas, and so on. On the other hand, a few sportsmen like Sachin Tendulkar have their own merchandising business with all sorts of gifts and collectibles from colourful T-shirts, baseball caps, knapsacks, and mugs to china plates and crystal glasses to name a few.
Copyright
Copyright law protects the expression of ideas and not the ideas itself. Copyright subsists in literary works, musical works, artistic works, dramatic works, photographs, sound recordings, and cinematographic films. Copyright is protected from the moment the work is created. This right allows the owner to reproduce, make copies, sell, make derivative works, adapt the work, license, and assign the work. In the process of sporting events and its promotions, the utmost amount of IP that is created is Copyright. Broadcasting rights is another set of IP that is created during screening of the sporting events. Broadcasting rights are a separate set of rights recognized by the Indian Copyright Act, 1957. These rights are available aside from rights that are present within the content of a live match. The term of broadcasting rights is twenty-five years. Generally, these rights lie with the broadcasting companies.[4]
Role of IP in Sports
In India additionally, the industry of sports is increasing and greater throughout the years with specific games getting inconceivable mileage over others because of the commercialization and venture intrigue. Cricket has for a considerable length of time been a man of his word’s game, which has now changed into a grand business game drawing in colossal capital, ventures and benefits. The most recent T20-20 organization and IPL (Indian Premier League) have removed the cover to intensely report that it is the business, which is presently on the front line of the game. The cash in the games has prompted gigantic tricks in the ongoing past because of enormous money related stakes, fixing, wagering, doping and betting issues. The Indian government is likewise attempting to streamline the business remembering each gathering enthusiasm including the players, groups, supports and the general population everywhere, through the presentation of the Sports Bill, 2011, which is soon prone to turn into a reality, and ideally will have the option to control the administration of sports somewhat.
The ongoing accomplishment of the FORMULA ONE RACE composed in India shows the tremendous business intrigue produced in the corporate world regarding marking and occasion the board. The association and smooth execution of a race of such global standard in India for the absolute first time has brought the country into a select group, putting further spotlight on the games law and the protected innovation rights which can be utilized to make marking prompting colossal worth age. From the legitimate point of view the protected innovation rights as trademarks, copyrights, modern structures, character and picture rights, promoting and attention rights, authorizing and diversifying openings have gained huge incentive for insurance, commercialization and misuse of business parts of sports, sportsmen and games. In India, IPL groups are a case of significant worth creation through marking and licensed innovation abuse.
Character Rights in sports assume a significant job in the brand production of individual games players and groups. Superstar status prompts different types of picture creation, brand support and income age gaining by acclaim. It is alluring that the alliances, coordinators, group proprietors and athletic equipment producers must pick enlistment of their group names, logos, settings, inscriptions, slogans and mottos enrolled as trademarks under the (Indian) Trademarks Act 1999, which will make their life simple for securing their trademarks in Indian courts. An activity with respect to the players to enroll their names, photos and personifications as trademarks/brands ought to likewise be the standard of the day.
Negligible relationship of the name of a group, their logo or a cooperative person, could offer phenomenal mileage to the individual or element utilizing such name or logo. It is a misfortune to the group, group proprietor, the player and a baseless addition for the element partner such name or logo for their own business benefits, without taking any consent, or paying any permit expense or sovereignty. An unapproved utilization of the trademarks by an outsider without the assent or permit of the individual proprietors of such trademarks, may likewise bring about harm to the altruism and notoriety of the partners, additionally adding up to uncalled for exchange practice, out of line rivalry and weakening of generosity and notoriety. [5]
Under the (Indian) Trademarks Act, 1999 both common and criminal cures are at the same time accessible against encroachment and going off. It is intriguing to take note of that for looking for insurance under the Indian laws REGISTRATION OF TRADEMARK IS NOT MANDATORY, so even the individuals who have not gotten any enrollment can uphold their privileges in the courtroom. Strikingly infringement of a trademark is a cognizable offense in India, and criminal procedures can be started against the blamed. Such implementation instruments are relied upon to support the security of imprints in India and diminish encroachment and repudiation of trademarks.
Protection Regulations
The law of copyright in India not just accommodates common cures as lasting directive, harms or records of benefits, conveyance of the encroaching material for demolition and cost of the lawful procedures. and so on yet additionally makes an example of encroachment of copyright, a cognizable offence culpable with a term which will not be under a half year yet which may reach out to three years with a fine which will not be not as much as INR 50,000 yet may stretch out to INR 2,00,000. The (Indian) Copyright Act, 1957 offers capacity to the police specialists to enlist the Complaint (First Information Report, i.e., FIR) and follow up on its own to capture the charged, search the premises of the denounced and hold onto the encroaching material with no intercession of the court.
Names in sports, which are additionally treated as trademarks by Indian courts, likewise assume a generous job in assurance of protected innovation rights related with sports. Colossal data is scattered and occasions are being communicated including web based games identified with games through web, which has not just procured a massive piece of the overall industry in marking and worth creation, yet in addition offered chances to digital squatters to take the advantage of the perplexity which might be inferable exclusively to space names. The sites have become an extraordinary wellspring of promoting just as brand building and following. With an end goal to connect with general society and develop brand acknowledgment different support organizations direct online rivalries, online ticket deals for games, web based shopping gateways available to be purchased of merchandize and so on., as the web is a practical technique to contact people in general and make mindfulness about a game, cooperative individuals and so forth.
In any case, a bland methodology towards the area names may disintegrates the capability of the advantages which may collect through a game. Area names help with building associated brand picture, movability and site improvement. It has gotten critical to enroll numerous space names with different changes and blends to ensure sport fans, fans, merchandize searchers, internet gamers and data searchers from submitting botches prompting redirection of traffic to corrupt sites facilitated by digital squatters. Now and again even the sites in the attire of fan locales may become wellspring of digital hunching down, making it increasingly critical to be watchful about enlistment of area names.[6]
There were days when sports were merely viewed as an entertainment, for one’s own distraction from the monotonous day-to-day life. However, the present-day scenario of sports has faced many changes. These changes are not only because of the ratio of people who participate but also because of the increased viewership. Since sports clubs and associations spend a huge amount of money on sporting events, Intellectual Property protection is needed to safeguard their interest for effective management. It must be your weekly dose of the game, but for the people who run the show, it is a multi-billion business, and protecting this business is the strong arm of Intellectual Property.
Innovation and creativity are key drivers within the world of sport. In every sporting field, inventors and creators are working behind the scenes to push the boundaries, creating new opportunities for enjoyment and for athletes to raise their performance.Sport shows intellectual property (IP) in action. Patents encourage technological advances that end in better sporting equipment. Trademarks, brands, and styles contribute to the distinct identity of events, teams and their gear. Copyright-related rights generate the revenues needed for broadcasters to invest in the costly undertaking of broadcasting sports events to fans all over the world. IP rights are the idea of licensing and merchandising agreements that earn revenues to support development of the sports industry.A sports shoe could also be protected by several IP rights:
-Patents protect the technology wont to develop the shoe
-Designs protect the “look” of the shoe
-Trademarks distinguish the shoe from similar products and protect the “reputation” of the shoe (and the corporate making it)
-Copyright protects any artwork and audio-visual creations wont to publicize the shoe
Intellectual Property Day is celebrated every year to create awareness among people about the significance of such rights granted to creators and inventors. The theme of the 2019 World IP Day that was celebrated on the 26th of April 2019 was “Reach for Gold: IP and Sports”. Sports are not only a way of recreation but also a billion-dollar business. To cite an example in this context is the importance of Intellectual Property Rights in Cricket, a sport that originated in South East England in the late 16th century and has developed into a worldwide sport today, alongside it’s also developed the companies associated with it like cricket accessories, the tournaments, food & beverage sold during the events and much more. Many aspects of Intellectual Property Law – Trademarks, Patents, and Copyrights come into play in any sport. In general, property Rights are integral to sports, which aids its growth. The business including but not limited to sponsorship, merchandising, broadcasting, etc, bring in revenue to the game favourable to its development.[7]
To start with, branding plays a pivotal role in the financial success of a sport. The logos, the team names and far more would be registered as a trademark to secure protection. These logos are also used on accessories like T-shirts, coffee mugs, etc. In the event of not registering such marks, they could be used by any person, thereby getting an undue benefit. Even the names of players need to be registered as many brands use the players’ names to endorse their brands. The players have the right to benefit from their success and popularity. They could also license their trademarks to other companies who would be profited and at the same time, the players could also have control over its use.
There are instances where the names of players were registered by other parties where there are chances that the players were not aware of such registrations. One such example is the registration of a trademark that features the player’s name which was done in India which could be seen on the Indian Intellectual Property Website. Ponting is a very famous Australian Cricketer, who is considered as the greatest batsmen of all times. He was the captain of the Australian Cricket team, during the Australian Cricket Team’s reigning era. An individual has registered the word mark “PONTING” in school 25 and is benefitting from the utilization of the name. There are high chances that the Cricketer is not even aware of such a registration.[8]
Once the design or the trademarks have been successfully registered, they could be enforced in that country which covers the registration, that is legal action could be initiated against anyone using these marks or designs without the authorization of the owner. Licensing would be an honest option for brand owners to commercially enjoy these registrations. By licensing, the owner would give other companies the proper to use their trademarks or designs on their merchandise. The brand owners would, in turn, receive license fees also as royalties.[9]
Sports as such cannot be patented as they are ideas, nevertheless, there are many aspects related to it that could be patented which indirectly would result in the protection of the sport. The Modified Chess Game with Additional Game Pieces is a variant of the old chess game whereby a new piece called the beast could block enemy pieces and allow the friendly ones to pass through it or bounce off it. This was granted a patent within the US as this new game satisfied the qualifying criteria of latest and useful purpose.Not only is the game that could be patented, but also the equipment and accessories related to sports. In the 1970s, in the US patent was granted to athletic shoes, in which modifications were made to the sole which was useful in the games where the players had to stop, start, and change directions abruptly. This drastically changed the course of the athletic shoe designs that were used in sports.[10]
Copyrights also have a major role to play in sports in telecasting and broadcasting. Recently, it is the audio-visual media piracy that is affecting the sports sectors. It could be offline as well as online, which involves the use of transmission signals and recordings. An instance of offline infringement is when there is an unlicensed transmission of the game. This could be where the material used is without a license or beyond the scope of the license. Also, live events face such quite piracy issues. Many times, clippings, or highlights of the best parts of the game are uploaded and made available to the public which would in most cases be without the right holder’s approval.
It is in these aspects that the significance of copyrights comes to play.The Indian sports market is rapidly growing with different disciplines like cricket, football, badminton, hockey, tennis and kabbadi proving popular. Sport in India has never really been taken seriously, however. it’s always been seen as a source of recreation. Globally, the sports industry may be a massive sector, bringing together entertainment, games, culture and monetary business together. it’s only in recent years that the commercial viability of sport in India has begun to be explored and exploited.
Commercialization Of Sport and Competition:
The commercial aspect of sports has not only added to individual gains, but has reaped benefits for the economic process of the country. Almost every facet of the industry is being tapped into and capitalized. property rights (IPR) are valuable assets that are used as marketing tools toward the branding of games and connected events, sports clubs, teams, celebrity status, etc.With growing competition comes the necessity to guard individual and team interests, in order that others don’t ‘piggyback’ on their established name and goodwill. Every aspect of property (IP), whether it’s trademarks (including personality rights), copyrights, design or patents, form an integral a part of the commercial sports industry, and thus require protection so as to bypass any complications which will arise.
There are various statutory provisions, that affect IPR disputes which will arise.In the sports industry, a sequence of title has relevance in sports agreements which incorporate the legal release of the talent of the sportsman, in order that their work, images, personality rights, etc., are often employed by another for his or her profit. With the emergence of the Indian Premier League (IPL), and various other emerging leagues, various teams are formed, which are owned by individuals or partners. Teams are sold to other individuals or partners and in such an occasion the chain of title becomes a problem , so as to determine the title in trademark, copyright and various other IPR which can form a neighbourhood of such an occasion .
Ownership of IPR within the sports industry
Due to their inherent basic attributes, IPR are often bought, sold or licensed. it is mandatory to corroborate the ownership, in order that the attributes of the IPR are often commercially exploited by their owner. Therefore, so as to bypass disputes, it’s recommended that the IP is registered, as this permits ownership to be accurately established.IP protection is jurisdiction-specific, which suggests IPR must be registered in India albeit they are protected during a foreign jurisdiction. Registration of patents, trademarks, designs, and copyright could take several months or maybe years in India due to considerable backlogs at the IP registries, so businesses should plan their registration well before entering the market.
They should conduct an audit of IP which will be exposed to the Indian market. If it is commercially worthwhile, businesses should take steps to register it well beforehand. The Trademarks Act, 1999 protects registered marks like names, logos, brands of the event and every individual team or franchise. The Designs Act, 2000, provides protection for merchandise, equipment, footwear, and apparel. The Copyright Act, 1957 provides registration for original literary, dramatic, musical, and artistic works, cinematographic films and sound recordings. additionally, it provides for broadcasting and performers’ rights. Copyright also exists, with reference to sports, in recorded visual images or commentaries of sports events, and pictures of events.
Sources of IP disputes
Various acts of infringements of IP, also as unauthorized use of IP, eventually cause IP disputes.There are various legal issues which will arise within the sports industry, including: infringement of trademarks, brand abuse, misbranding, misuse in bad faith, using the name of a sports personality without permission or without paying any licence fee or royalty; infringement of copyright with reference to the copyrighted merchandise, sports equipment’s, artwork in logo, without licence broadcasting, piracy in audio-visual recordings, infringement in promotion used, use of copyrighted software without licence or royalty; infringement of design, use of design without license, use of design for promotion of other goods; and just in case of patents, the utilization of patented technology without authorization from the owner of the patent.These issues can cause damage of goodwill, unfair trade practice, unfair competition, commercial disputes and ultimately cause huge commercial losses which might defeat the principal purpose of exploring the commercial aspect of the sports industry.
Enforcing IPR in India
India may be a signatory to varied international treaties on IPR. Furthermore, rights like trademarks, designs, patents and copyright are often protected through registration. These rights are enforceable through the Indian courts, which, within the event of infringement, can provide interim remedies like injunctions relatively quickly. The courts also can instruct perpetrators to account for profits generated from their infringement.There are three IP enforcement channels – police, customs and judiciary. Trademarks and copyright are often enforced through civil or criminal litigation, whereas patents and styles can only be enforced through civil litigation.
Conclusion
The sports industry comprises stakeholders such as sponsors, broadcasters, and players, all of which have developed exclusive IPR. Companies therefore need to continuously monitor their IPR by instituting effective systems, policies, and regulations to prevent infringement. Regular IP audits help to identify IP portfolios that need strengthening.Sports have end up a multi billion greenback international enterprise—one which generates funding in centres, employs thousands and thousands of human beings round the world, and entertains many extra. We take a look at how sports organizations use patents and designs to foster improvement of latest sports activities technologies, materials, education, and system to help improve athletic performance and have interaction enthusiasts global.
IP protections and incentives permit industries and individuals to prosper of their pursuit of innovation and logo improvement. This creates a synergistic and reinforcing effect. The development of new technologies strengthens a given brand; the strengthening of a given logo ends in the development of latest technology and merchandise, which in flip in addition strengthens the logo. Additionally, the popularization of a given recreation ends in the improvement of related industries and technology. Think of wearable health devices, that have led to the creation of a whole new sub-industry of app improvement. Similarly, there is a effective symbiosis among person players, their sports activities, their teams, the respective leagues, and related industries, which include branding, wearing items, and sportswear. The success of 1 a part of this atmosphere ends in potential business possibilities and the development of recent services and products for all related industries.
[1]https://www.wipo.int/ip-sport/en/
[2]https://www.mondaq.com/india/sport/808132/role-of-ipr-in-sports
[3]https://www.mondaq.com/trademark/844288/significance-of-intellectual-property-law-in-sports
[4]https://www.lawinsport.com/topics/intellectual-property-law
[5]https://www.scconline.com/blog/post/2019/07/22/the-untapped-emergence-of-ip-rights-and-sports-faster-stronger-and-higher/
[6]https://www.financierworldwide.com/sports-and-intellectual-property-in-india-an-emerging-sector#.XwHfGedS-T8
[7]SpicyIP
[8]Reach for Gold: IP and Sports, see <https://www.wipo.int/ip-outreach/en/ipday/>.
[9]The data produced by Google patents is from the respective patent offices, not from Google patents itself. See <https://cloud.google.com/blog/big-data/2017/10/google-patents-public-datasets-connecting-public-paid-and-private-patent-data>.
[10]D.C. Lippoldt and M.F. Schultz, Uncovering Trade Secrets—An Empirical Assessment of Economic Implications of Protection for Undisclosed Data, OECD Trade Policy Papers, No. 167, OECD Publishing, p. 29.
La Senatus Scriptors 