IPR ISSUES IN SPORTS BUSINESS

Gururaj Devarhubli
Assistant Professor of Law
Institute of Law, Nirma University, Ahmedabad, Gujarat (INDIA)

17.09.2023
INTELLECTUAL PROPERTY-PURPOSE?

Incentives Rewards Innovation

Disclosure
Creativity & Human
Progress
 SPORTS-PURPOSE?

Incentives Rewards Innovation

Disclosure
Creativity & Human
Progress
INTERFACE BETWEEN IPR AND SPORTS
 • On-field
Sports • Equipment
& • Sports Techniques
• Off-field
IPR • Sports Business Model
 • Patents
ON-FIELD • Sports Equipment
• Sports Techniques/Moves-Patentable?
 • Copyrights
• Broadcasting & Media Rights

OFF- • Broadcast Reproduction Rights

• Trademarks
FIELD • Sponsorships
• Endorsements
• Merchandising
 INTERFACE BETWEEN IPR & SPORTS
• Patents

• Trade Marks

• Copyrights

• Trade Secrets
INTERFACE BETWEEN PATENTS AND SPORTS
INTERFACE BETWEEN PATENTS & SPORTS
 INTERFACE BETWEEN PATENTS & SPORTS
• Golf Clubs
• Gym Equipment
• Sports Drink
• Muscle-building and nutritional supplements
 CRITERIA FOR PATENTABILITY IN THE U.S.A.

• Patentable subject-matter
• Useful
• Novel
• Non-obvious
• Described adequately
 CRITERIA FOR PATENTABILITY IN INDIA

• Patentable subject-matter
• New Invention
• Inventive Step
• Industrial Applicability
INTERFACE BETWEEN TRADEMARKS AND SPORTS
 AMBUSH MARKETING
• Coined by Jerry C. Welsh

• It is a “marketing strategy that uses the same themes as the sponsors to vie them for marketing eminence.”

• Comparative Advertisements vs. Ambush Marketing

COMPARATIVE ADVERTISEMENTS
V/S
AMBUSH MARKETING
COMPARATIVE ADVERTISEMENTS
V/S
AMBUSH MARKETING
 CELEBRITY/IMAGE RIGHTS

• The right to one’s own image is the ability to decide when, how and by whom our physically recognizable
features (image, voice and name) can be captured, reproduced or published.
• “Personality” – combination of characteristics or qualities that form an individual’s distinctive character.
• Right to Publicity
• Right to Privacy
• Proactive Sports Management Ltd. v. Rooney & Ors. (2011)
 REGULATION OF CELEBRITY/IMAGE RIGHTS

• Universal Declaration of Player Rights (2017)

• USA - Lanham Act, 1946
• UK – No specific statute (Trademark, Passing off, right to privacy, data protection laws)
• Guernsey Law on Image Rights
• India’s Position
• Russia’s Civil Code
 GUERNSEY LAW ON IMAGE RIGHTS
Image Right includes the following personal attributes:
• Voice
• Signature
• Likeness
• Appearance
• Silhouette
• Feature
• Face
• Expressions (verbal or facial)
• Gestures
• Mannerisms
• Any other distinctive characteristics or personal attributes of a persoonnage
• Any photograph, illustration, image, picture, moving image or electronic or other representation
 REGULATION OF CELEBRITY/IMAGE RIGHTS

• ICC Development (International) Ltd. vs. Arvee Enterprises

“The right of publicity has evolved from the right of privacy and can inhere only in an individual or any indica of
an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the
right of publicity by virtue of his associate with an event, sport, movie, etc.”
• A person’s consent, as per Russia’s Civil Code, is not required if:
• their image is used in state, social or other public interests;
• their image has been obtained in a place with free access or at a public event (meetings, congresses, conferences,
concerts, shows, sport competitions and similar events), except for cases when such an image is the main object
of use; or
• they have been paid for modelling.
 MOMENT MARKETING
• “Moment marketing” is a marketing strategy where brands take advantage of ongoing events, and try to gain relevance by inserting
themselves into ongoing conversations at a marginal cost.

Tests for Determining Moment Marketing:

• What is the motive or intent behind borrowing someone else’s work without authorization?

• Are they hoping to piggyback ride on the popularity or recall value of the borrowed work?

• What is the overall impression that the campaign hopes to leave in the minds of the audience?

• Is the borrowed extract an essential part of the material being borrowed?

CELEBRITY/IMAGE RIGHTS
CELEBRITY/IMAGE RIGHTS
INTERFACE BETWEEN COPYRIGHTS AND SPORTS
PIRACY OF SPORTING EVENTS
SPORTS DATA ANALYTICS
 SPORTS DATA ANALYTICS

• SDA is the study of analytical data involving players and their performances in order to determine their strengths and weaknesses.

• SABRmetrics

• Sports Data Analytics coupled with AI & Machine Learning

 SPORTS DATA ANALYTICS

• Injury Predictions

• Player Valuations

• Team Strategy

• Evaluating Ticket Churn

• Ticket Pricing

• Sports Betting
 USING SPORTS DATA

• National Basketball Association v. Motorola (1997)

• C.B.C. v. Major League (2007)

• Toronto Real Estate Board v. Commissioner of Competition (2017)