MITIGATING IPR CONFLICTS UNDER SPORTS LAW

All work and no play makes Jack a dull boy.” Every one of us has heard this in our lives some day. But in today’s world scenario sports have become an indispensible part of our lives. Sports has developed into a life inevitability. With the growth of the world around us, the use of science and technology and commercialization has made sports a field of huge magnitude and significance.

All the basic games like cricket, football, tennis, basketball, etc have evolved into mega international events and have become a source of business and massive earnings.  Indian Premier League (IPL), Spanish La Liga, English Premier League (EPL) and many such domestic sporting events have become a huge success. The coordinators of these games on the universal level have had the option to receive enormous budgetary benefits by inter alia abusing and utilizing on aggressive advertising effort exploiting the attractive possibilities inhabitant in these sports.

The Commercialization of Sports is by all accounts encouraging and promising, as it will help in making gains at particular level as well as at nation’s level which will thus offer strength to the business of Sports. Individuals around the globe have had the option to produce revenue through abuse of different parts of Intellectual Property rights in Sports by means of various methods, for example, Patents, Trademarks, Copyrights, Merchandising, etc. There is enormous significance and scope of Intellectual Property Rights in the sporting field. Intellectual Property Rights are vested in pretty much every part of the sports business. The Intellectual Property wheels the affair of sports. This commercialization of sports has not only benefitted the sports persons or big sports companies but has also helped in improving the world economy.

The extent of Intellectual Property Rights is gigantic in the sporting field. IP Rights are vested in pretty much every segment of the sports business. They start from Patents which energize mechanical advances that bring about better sporting gear. Trademarks and designs add to the particular personality of events, teams and their apparatus. Copyright-related rights produce the incomes required for broadcasters to put resources into the expensive endeavor of broadcasting of sports to fans everywhere throughout the world. For instance let’s take an example of a Fitness Band is protected by many intellectual property rights. The artwork or any audio or videos used to promote, market or advertise the band are protected under Copyright. The technology that is used to generate the fitness wrist band uniquely is protected by Patent. The name, status and brand value of the fitness wrist band is protected by Trademark and also Trademark is used to distinguish its unique and distinguishing features from other brand’s fitness band.

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Like every coin has two sides IP Protection also has its own advantages and certain disadvantages.  We all might remember the 1996 Summer Olympics in when Michael Jordan wore a pair of Golden Shoes by Nike and won 400-meter track event. This incident led to huge marketing of Nike brand and resulted in them having gigantic profits. But the question that arises here is that the International Olympic Committee (IOC) protects the Olympics Symbol under the Nairobi Treaty on the Protection of The Olympics Symbol, from any usage by different brands and follows stern rules against it. This strictness of the Olympics Committee dithers the companies from using the symbol for their marketing. To overcome this prohibition, companies use the way of Ambush Marketing. Ambush Marketing is practiced when any brand is not a part of a huge event and is also not its sponsor but still tries to attach or tie itself with the event and market its brand name and products. Nike, During Olympics 1996 used the same strategy and generated great commercial revenue, which resulted in IOC to implement very strict against Ambush Marketing as well.

In order to make the most of monetary returns fine management of intellectual property is very significant. This has been truly pointed out by Prof. De Werra in his book entitled Sports and Intellectual Property in the following words: “If intellectual property has something to learn from the sports industry, it can conversely be considered that the sports industry may have something to gain from the assimilation of the key values of Intellectual property law.”

In the case of Fuel Clothing Co., Inc.v. Nike, Inc., 2014 WL 1155402, FUEL is a brand that produces and markets sports apparels. Fuel owns the trademark for the word FUEL for clothing goods, and in February 2012 brought claims against Nike for trademark infringement and unfair competition relating to Nike’s fitness tracker products. According to Fuel brand, Nike used the word NIKE+ FUELBAND, for its electronic fitness wrist band and also had the phrases such as “Fuel it up” or “Fuel the people” on the promotional T-shirts it sold.  Nike also registered the trademarks “NIKE+FUELBAND” and “NIKEFUEL” in numerous categories such as health monitoring devices, watches and bracelets, but not in apparel or clothing line (the class in which the FUEL mark is registered).  Nike argued that Fuel had vacated its mark through naked licensing, where a licensor who exercises unsatisfactory value control over its licensee’s use of a trademark can lose rights in its mark; and, second, Nike argued that Fuel could not show that there is a possibility of customer uncertainty emerging from Nike’s use of the FUEL mark.

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Fuel raced to a quick lead as the court rejected Nike’s affirmative defense of abandonment but this lead lasted for only a short while and the Court gave the decision in the favor of Nike on the grounds like, the NIKE+FUELBAND is an electronic tool dissimilar to anything Fuel ever sold or plans to sell, and sold at a elevated price than Fuel’s leather wristbands. Also the court found that the NIKE+FUELBAND and Fuel’s leather wristbands have very different functions and aesthetics and if Fuel suggests about Nike’s promotional t-shirts that they are within the scope of Fuel’s mark, the t-shirt sales report for less than 1% of all the NIKE+FUELBAND-related sales.  The court also marked that Nike’s use of FUEL is always paired with the “NIKE” mark or “swoosh,” or the “NIKE+FUELBAND” mark, which reduces any costumer perplexity due to the textual resemblance of the marks.  The court concluded that the NIKE+FUELBAND and Fuel’s goods generally were not sold in the same trade channels — Nike sells the NIKE+FUELBAND exclusively in Nike and Apple stores and on the internet, while Fuel sells its apparel/ clothing products through its own store, in small retail shops, and the internet.

There are certain ways by which Intellectual Property Rights Conflicts can be mitigated in the Sports Law.

  1. Taking Actions – As the exacting necessities for acquiring an activity going off shows, it’s one thing to turn out to be unmistakably the extent of assurance, yet something else totally to really practice that security, not least on the grounds that a ton of encroachment of IP rights happens progressively with regards to on the web and worldwide markets, where distinguishing and following the infringer can be very troublesome.In any case, there are normally practiced implementation alternatives accessible, and any reasonable person would agree that the sports segment is no more bizarre to testing IP encroachment. Live sports broadcasting; for instance, is secured by copyright which, under a universal bargain, can by and large be upheld around the globe. All things considered, in common registered rights, for example, trademark will in general be the fastest and least complex to implement. With regards to sporting format, copyright and unregistered trademarks are both increasingly troublesome and progressively costly to authorize.The best guidance for new sports formats in this setting lies in doing the development planning – understanding what materials and structures merit ensuring, thinking about the best type of security, and afterward checking should be done and a proper set up should be created  to make a move against encroachment.
  1. Principal Body’s Security- It can be highly useful, advantageous, necessary as well as safe for the sports format creators, specifically the ones creating a new kind of sports format and it requires the principal or the governing body sanctioning, to collaborate or work in the close radius of the principal body of that particular sport. Many a times International Body also are very readily willing to help new and emerging sports formats and to provide their protection to them, to prevent rivals from competing by rejecting their claims. These small yet very significant help by the governing body van be very useful to avoid IP conflicts.
  2. This point aims to focus at the importance of the non disclosure and confidentiality of the information which the organizations have should be maintained. And it is the obligation as well as the duty of these organizations to follow the confidentiality and non disclosure clause in any circumstances.
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It is the need of the hour for the Government of the countries to formulate and use very strict laws in the matters related to IP conflicts in sports. The owners of various sporting organizations, events, sports persons, etc should also take due care related to their IP Rights and should be well aware of their right to sue when someone breaches them. It is recommended by this article that countries should come up with a sports and IPR model which provides people with the knowledge of various IP rights like patents, copyrights, trademarks in sports as well in the broadcasting and media rights related to sports.

 

 

 

Author: Archita Tiwari,
National Law Institute University, Bhopal ( 1st year)

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