Sports and Intellectual Property Law in India

INTRODUCTION

Sports has always been treated as at the least a recreational activity, at it the most a showcase for athletic prowess. In the recent times, this has changed immensely; the new world of capitalisation has turned the concept of “sports” into a revenue generation avenue. The Indian sports market, especially is a ground for rapid growth, with a die-hard fan base, and an ever-growing hunger for more, the market of sports is at the top of its game. The commercialisation of the sports industry is not a new phenomenon, cricket has always been the sport of choice, and its best players are no less than any A list celebrity. The sport cricket alone has its own betting tie ups, virtual games, cards, associations with chips, if there is an industry the sport has a connection. Almost every facet of the sports industry is now being tapped into and marketed and Intellectual Property are valuable assets for these marketing tactics.

COMMERICIALISATION OF SPORT

The commercialisation of sports is a direct reflection of the increase in consumer’s purchasing power. The better the economy, the richer the consumer, the more commercial the sport. Intellectual property is the asset that assists this commercialisation. It is important that the rights of the individual athlete or the team can be protected. In sports, a chain of title has relevance within their agreement, which includes the release of the athletes talents so that their talent can be branded for profit. With the greater increase of various “leagues” such as the IPL in cricket, or the NBA in basketball, various teams are formed by various individuals to assert a title in trademarks and copyrights, amongst other forms of IP so that profit can be maximised.

IP WITHIN SPORTS

The main aim of IPR is to encourage creativity and innovation, it is to ensure that the rights of the creator are protected, and the benefits of the IP are rightfully received. This aspect, especially the insurance of protection, is one of the main reasons why sports commercialisation is so intrinsically linked with IPR.

Intellectual property, inherently, can be sold, licensed or marketed. Therefore, sports tie ups with pre-existing IPs and brands make it easier for commercial exploitation and profit maximisation. Within India, the sports market is able to thrive due to the extensive laws.

• Trademark –

The Trademarks Act protects registered marks such as names, logos, etc. A trademark is a symbol or design or word or phrase that acts as an identifier for a business goods or services. A business may come up with a unique design to stand out from its competitors, to act as a differentiating symbol for the company. At times a trademark may even take colour as a differentiating identifier for a business. Take the iconic golden and red lion for the RCB logo or the purple and golden knight for the Kolkata Knight Riders. These colour and designs are the identifier for the teams and its players, these marks can be registered, and used on merchandise to gain a profit. This allows the team players to market existing products or to sell new merchandise with the brand colours and logos. Trademarks have immense value associated with the sports market and is essential for franchising or branding the league, team or athlete. Domain name is another business identifier which has come up with the existence of the internet. It serves as a means of identification via websites and online commercial activity. The internet era has lead to an increase of IP in the sports sphere, but has also lead to negative aspects such as cybersquatting, which although does not have a specific remedy, can be quashed using existing trademark law. The Indian law also provides extensive remedies against infringement and unauthorised usage. The law is well versed with the aspect that infringement may lead to unfair competition, trade practices, commercial disputes and damage of goodwill and therefore has a plethora of pre-existing provisions to ensure quashing infringement before it can begin. The Trademark act provides both civil and criminal remedies, and has statutory remedies for registered and common law remedies for unregistered IP. The act also provides action against misrepresentation of well-known marks and has a special kind of protection known as the Anti-Dilution law. These provisions are in place to ensure that the rights of an owner are not infringed and disputes are avoided.

• Copyright-

The Copyright Act provides for registration of original literary dramatic, musical and artistic works, including cinematography and sound recordings. This also includes match footage, photographs of the events and the players, this allows the leagues or team owners to license the right to stream or record the matches to specific channels or platforms, as was the case with the exclusive streaming rights originally provided to Star sports and Disney Hotstar. The broadcasting rights, under the copyright act, are valid for 25 years. These rights not only allow the owner of the broadcasting company to show the matches but also to re-broadcast the match. The screenings once recorded as part of the broadcasting right then become a part of the broadcaster’s inventory, giving them full right to reproduce, as part of the agreement either on its own terms or by paying a fee to the original franchise owner. Piracy and unauthorised downloads of these recordings can also result in a penalty up to 1 Crore.

• Personality Rights-

Personality rights are perhaps the biggest aspect of IP within sports commercialisation. Well known athletes receive the status of celebrity and are essentially worshipped, especially in a country like India where celebrity fan-fare is at its peak. Therefore, the “personality” of the player becomes a brand in itself. The image of these athletes is a massive aspect of revenue generation and capitalisation. The athletes can have their name associated with just about anything and it would lead to massive sales. Certain individuals have become a brand on their own right, such Christiano Ronaldo and Tiger woods. It is hence important that their personal brand is well made and protected. Several athletes like Michael Jordan, David Beckham and Sachin Tendulkar have started their own endeavours outside of sports, solely on the basis of their names and have therefore even gotten their names registered as trademarks. Mere association can lead to commercialisation, for eg the boost campaign with Virat Kohli, Puma and PV Sindhu, EMotorad and Dhoni, etc. The art of character merchandising, that is association of a celebrity identity for merchandising products or services, is an essential part of personality rights within the world of sports commercialisation. However, considering the massive monetary power of these celebrity names, it can lead to severe misuse. The Trademark act, within this aspect falls short, as it is unable to draw a clear line of distinction between the image of the athlete or the team and the individual.

CONCLUSION

It is well documented that the commercialisation of sports has increased exponentially, turning into major businesses generating huge profits. Unfortunately this has led to a greater increase in the exploitation of intellectual property.

India is a signatory to several IPR treaties, and thus provide several safeguards for the owners of IP through timely and proper registration and their enforcement. In cases of infrignemnt as well India provides several remedies civil and criminal remedies, such as injunctions, penalties, etc. Within Inida, there are three major channels for IP enforcement: Police, customs and judiciary. The sports industry includes sponsors, broadcasters, and players, all of whom have their own unique intellectual property rights (IPR). To protect these rights, these IP owners need to have strong systems, policies, and regulations in place to avoid infringement. Key issues such as ownership rights, revenue sharing, image protection, etc require careful consideration to ensure safeguarding. Regular IP audits are crucial to spot any gaps in their IP portfolios and ensure they’re well-protected. Further, it is essential for them to thoroughly understand the business and legal side of the sports.  As the success and popularity of a sport, an athlete or a team grows, so does it IP Portfolios, and it is essential to utilise the procedures of law to maintain and safeguard the portfolio effectively.

Author: Aadya Tewari, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing