INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT IN SPORTS: Safeguarding Innovation and Legacy

INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT IN SPORTS:

Safeguarding Innovation and Legacy

INTRODUCTION

“Laws without enforced consequences are merely suggestions ”

― Ron Brackin

This quote from Ron Brackin highlights the drawbacks of non-enforcement and the benefits of enforcing the law. Making a law is not of any use until it is enforced using penalty or consequences for its breach. Rights conferred by law are safeguarded by the provisions regarding action taken for breach of those rights. If rights are not exercised and enforced with consequences, they will not be of any use and will have no value other than a suggestion. Hence, enforcement of rights is as important as the recognition of those rights. In case of breach of rights, appropriate action has to be taken at the end of the victim to enforce his rights. As has rightly been said,

“Vigilantibus non dormientibus jura subveniunt ”

It indicates that the exercise and use of rights are as important as the recognition and awareness of rights. The same is applied in the field of Intellectual Property. Intellectual Property Rights are conferred to provide Reward, Recognition, and Remuneration to the owner of the rights to motivate him further in his respective field.

Figure 1: Purpose of Intellectual Property Rights

Intellectual Property creates a balance between the public interest and the private interest of the people . Where on the one hand it protects the rights of inventors and creators, it provides the public the right to use it and do further developments for a better lifestyle and society . Intellectual Property is one of the largest contributors to the Gross Domestic Product (GDP) and employment of developed nations. While it contributes about 47% to the GDP of the European Union and 41% to the GDP of the United States, the IP and IP-intensive industries contribute 39% and 44% to the employment of these countries respectively . It describes the reach and role of IP in the development of modern society.

The main purpose of Intellectual Property is to promote creativity and innovation. It prevails in all the configurations of the industrial sector. The sports industry is one of the major industries that has an immense presence of Intellectual Property and Intellectual Property Rights. Intellectual property is everywhere in sports such as Copyright and related rights for broadcasting and cultural performances, Patents for inventive and technologically advanced equipment used in sports, Trademarks for sports brands like the Olympics, and so on. This paper will analyze where Intellectual Property Rights can be exercised, how to enforce them in the field of Sports, and how they can further be utilized to promote and propagate the sports culture in the world.

Research Outline:

This paper will study the enforcement of Intellectual property Rights in sports. It is divided into four Chapter which are described as follows:

Chapter 1: Applications of different Intellectual Property in sports.

Chapter 2: Potential risks of infringement and non-enforcement of Intellectual Property Rights.

Chapter 3: Possible measures for the enforcement of Intellectual Property Rights in the field of sports.

Chapter 4: Author’s insight and way ahead.

LITERATURE REVIEW

Chapter 1: Applications of different Intellectual Property in sports

Intellectual Property Rights have a very important role in the sports industry. Copyright and Trademark are most important in particular . The application of Intellectual Property Rights is discussed in detail as follows:

I. Copyright and Related Rights:

Copyright and related rights are some of the most important Intellectual Property Rights for the sports industry. Photos and videos of athletes, cultural performances during the events, broadcasting of the sports events, etc. are all protected under copyright.

Figure 2: Copyright and Related Rights

Cultural performances as well as sports performances such as figure skating or ice skating, etc. during the sports events are protected under the copyright law . Along with this, the filming of these events by people is also protected under the related rights considering the creator as the producer of the film .

The most important are the broadcaster’s rights as maximum revenue lies in this area. Sports fans are keen to see live sports events even if it is paid . However, piracy is a big hurdle in this where copyright and related rights protection comes into play . To secure the investment made by the broadcaster to obtain the broadcasting rights, vigilance, and enforcement of rights under the respective law is necessary .

The rights of the organizers of the sports events are primarily focused on the venue of the event . They regulate the commercial exploitation of the event. Considering the database protection, sports data has a very high commercial value as it can provide a competitive advantage . As was witnessed in the movie Chak De! India , when the Australian coach analyzed the data of players of different teams to guide his players.

II. Trademark:

Trademarks are used for brand protection. In sports, teams, leagues, sports clubs, sports federations, and even individual players can develop a brand . For instance, the Madrid jersey has a team brand and trademark logo on it . Renowned Tennis player Roger Federer owns the trademark “ROGER FEDERER ”. These brands help generate revenue and attract investors and sponsors for the term and the players .

III. Patents:

Patents are important because;

IV. Design rights:

Design rights make a product look appealing and desirable . It can be used to protect;

V. Trade Secrets:

Trade secrets in sports include scouting reports, play frequency reports, prep books, videos and notes, etc . One such incident was observed in the case of New York Knicks, LLC v. Maple Leaf Sports & Ent. Ltd., No. 1:23-cv-07394 (S.D.N.Y. 2024) . In this case, the Knicks sued the Toronto Raptors in breach of Trade Secret for secretly obtaining proprietary information from the Knicks’ email account including scouting reports, play frequency reports, prep books, a link to third-party licensed software, as well as edited game film, bespoke film compilations, notes, and commentary using Azotam, an employee of the Knicks who got a job offer from the Toronto Raptors .

VI. Ambush Marketing:

Ambush marketing refers to passing off the marketing efforts of another brand for self-benefit . This includes using pictures, references, or indirect statements to show an association with the event and gain popularity . The same happened when the gambling company, Paddy Power, from Ireland claimed to be the sponsor of the largest athletic event in London while they were sponsoring only a traditional egg and spoon race in London in the year 2012 . This was the year when the Olympics were organized in London .

Chapter 2: Potential risks of infringement and non-enforcement of Intellectual Property Rights

Following are the potential risks of infringement and non-enforcement of Intellectual Property Rights:

 Devalue the ability to license the Intellectual Property :

Licensing is one of the major sources of revenue in the sports industry. According to the data from a sports marketing agency, Two Circles, the revenue of $159 billion was generated by global sports IP owners such as federations, leagues, teams, events, and athletes . This data does not comprise the on-field earnings . It may rise to the mark of $260 billion by the year 2033 . Hence, if the IP rights are not enforced and continue to be infringed, why would anyone be interested in licensing the IP?

 Damage to reputation :

IP infringement and non-enforcement bring damage to the reputation of the product and services. Counterfeited or fake products used under a popular brand name, damage the reputation of the brand and cause a major loss . It causes confusion, degrades the quality of the product, and results in a loss of trust and revenue for the brand. Hence, it affects the brand image severely.

 Jeopardize the funding model :

The major sources, as discussed above, for funding and revenue generation in sports are

• Broadcasting rights
• Licensing of IP

However, pirated content and counterfeited products affect the amount of revenue obtained from sports . Fans are interested in watching the live events in the field or at home and they are willing to pay as much as they have to . That is why tickets for large sporting events always sell out in no time no matter how expensive they are. The remaining people watch the live events from home. Hence, if pirated content is available, why would people be willing to pay instead of watching it for free? Hence, IP infringement and non-enforcement jeopardize the funding model of the sports events.

Chapter 3: Possible measures for the enforcement of Intellectual Property Rights in the field of sports

The following are the possible measures that can be taken to enforce IP rights:

 Legislative Actions:

As the sports industry is one of the major contributors to the GDP of a country, special legislation focusing on problems related to that specific field is necessary. For instance, the Audio-Visual Media Services Directive of the European Union addresses the public’s access to sporting events .

 Judicial Remedies:

In the absence of legislation and for interpretation of legislation, the judiciary plays an important role in the enforcement of Intellectual Property Rights. For instance, in 1975, the American courts gave a judicial pronouncement in the case of Bos. Pro. Hockey Ass'n, Inc. v. Dall. Cap & Emblem Mfg., Inc., 510 F.2d 1004 (5th Cir. 1975) that if the trademark logos and names are used in clothing items without getting a license, it would be an actionable trademark claim .

 Collaboration with Authorities:

Collaboration with authorities would be helpful in;

 Education and Awareness:

Educating and making aware the fans, businesses, and stakeholders of their IP rights. It will be helpful in countering counterfeited goods and unauthorized broadcasting and licensing of sporting events. For enforcement of rights, first one needs to be aware of the rights. Hence spreading awareness through campaigns, seminars, etc. For instance, the Union of European Football Association (UNFA) uses real-time content monitoring and digital watermarking during events like the Champions League .

 Licensing and Contracts:

Licensing and Contracts help the sports organization delegate the rights further to manufacturers, broadcasters, and sponsors ensuring;

 Public-Private Partnerships:

Collaboration of public and private entities ensures advancement in enforcement capabilities. For instance, the collaboration of Fédération Internationale de Football Association (FIFA) with customs authority to track down, counter, and seize counterfeit products during the FIFA World Cup .

Chapter 4: Author’s insight and way ahead

Intellectual Property Rights have their presence in every industrial arena and the sports industry is no exception to it. IP in Sports is a very important source of revenue. It supports employment, entrepreneurship, technological advancement, and business growth along with boosting the economy of a country, and international trade, fostering amicable relations with other countries, and enhancing the competitive spirit .

Different IP Rights play different roles in the sports industry. However, non-enforcement of these IP rights can compromise the delegation or licensing of these rights, the funding model of the sports industry, and the reputation of the brands and associated products and services. To counter or prevent these drawbacks enforcement measures such as legislative actions, Judicial remedies, collaboration with authorities, education & awareness, and public-private partnership have to be taken.

Considering the fourth industrial revolution, the following steps can be taken to use it in favor of IP enforcement:

 Online and digital monitoring

 Data analysis and sorting using AI

 Deploying AI to keep an eye on digital infringements

 Using AI bots on social media to spread education and awareness.

Reference Notes:

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