Practitioners Discuss Interconnection Between Professional Sports And IP

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A recent conference of AROPI (Association Romande de Propriété Intellectuelle), an association of intellectual property practitioners in French-speaking Switzerland, examined how sports and IP interact.

The event took place from 28 February to 1 March at the headquarters of the Union of European Football Associations (UEFA) and was organised by AROPI. Information on the event and on the presentations of the panellists may be found here.

The event looked at the cross-cutting nature of IP in relation to sports, and sought to analyse the complex IP architecture that surrounds sports at the highest levels. From brands to patents to broadcasting contracts, panellists described a well-designed system where business seems to rule, to the possible detriments of sports values.

IPRs, Sports Equipment and Competition

Stéphane Lapierre from the company Amer Sports said that the protection of innovation in sports items is extremely important and that IP rights must be granted to distinguish products and brands from their competitors. To stress the significance of IP rights over sports items, he took the example of a hiking shoe by Salomon – a brand of Amer Sports – and explained that more than 10 patents, brands and designs are part of the product. Jeremy Nicholls, a European patent attorney and inventor, said that he only started attracting investors once his invention was granted IP protection.

Ignacio de Castro, from the World Intellectual Property Organization Arbitration and Mediation Centre, and Michele Bernasconi, a member of the Court of Arbitration for Sport (CAS), explained the rising recourse to arbitration for disputes related to sport which concern, to a large extent, patents.

Daniel Kraus, professor of intellectual property law at the University of Neuchatel, questioned the limits of patentability in the sport domain.

Kraus noted the positive role that patents play as stimulators of innovation. However, he pointed out that some patents on sport items can give a technical advantage to an athlete or a team and wondered if this can impede fair competition between players. Kraus proposed to “leave patent law as far as possible from sport” and to leave the decision-making power over equipment to the federations. A member of the audience explained what he qualified as “the lobby of some sport suppliers towards the federations.” This person explained the actions and impact some companies have on technologies officially chosen by federations for competitions.

Beyond the issue of patents on sports items, Kraus raised questions as to patentability of sports techniques and the extent to which these should be allowed. He took an example of an American patent granted on a golf method. He also discussed whether, for instance, patent protection on a way of playing soccer with special moves could be protected by intellectual property law. For him, the boundaries between patentability and professional sports should be carefully designed.

For Kraus, the issue of access to sports technologies in the South echoes the situation the global South faces regarding access to medicines. According to Kraus, it is in the North that most innovation related to sports and medicines is generated, although the greatest need for access is in the South. He observed that many of the best athletes, at least in soccer and running, are from the South.

In Kraus’ view, equality in sport must be ensured, despite gaps in technologies between the global North and South. The natural performances of athletes should come first and foremost in any technological aspects, he said.

No panellist presented data to explain how sport equipments technologies can actually make a difference in the performance of athletes. Some members of the audience said that other factors in sport like training make an even bigger difference than sport supplies and that in this respect no team or athlete is ever on an equal footing.

Sponsoring Contracts

Sponsoring contracts between an athlete and a brand are “the art of making oneself known by speaking about other things,” said Christophe Maillefer, a Swiss attorney from Gros & Waltenspühl, who explained the many contractual aspects of such contracts, like exclusivity clauses. In his presentation, he explained that such contracts create complex contractual regimes where various actors are involved and are all willing to take advantage of the image of the athlete to represent their brand.

Sarah Morellon, in charge of intellectual property at Audemars Piguet, shared her practical experience with sponsoring contracts. She said the legal regime of sponsoring contracts is different if the athlete plays on a team or individually.

Regarding team sports, Morellon said that sponsoring contracts may concern an individual athlete or the whole team. A player can be a party to different sponsoring contracts, both as an individual and as a team player. In this regard, athletes can be under contracts with competitive brands, she said.

To avoid any conflict of interest between brands, sponsoring contracts strongly regulate the way brands can use the image of athletes, she said. For instance, she illustrated that special clauses in the contracts specify in which kind of outfit the athlete must be dressed when representing the brand (like in a sport outfit or street clothes) and in which context (alone or with other team players).

As for individual sports, Morellon highlighted that when a company wants to engage in a sponsoring contract, it has to take into consideration the rules of the federation. In some cases, there are limits to personality rights and sponsoring contracts at the advantage of another brand. She took the example of the Roland Garros French tennis contest, where the athletes concede their personality rights to the organisers of the competition and their commercial partners.

Regarding the impact of sponsoring contracts on consumers, she alluded to the lucrative impact of such arrangements while explaining that “when we reach a contract with an athlete and create limited edition series of products to his/her effigy, we sell everything.”

Ambush Marketing

Attorney Pierre Kobel defined ambush marketing as “the association between an economic actor and an event without the authorisation of the organizational body of the event.” In other words, it is some kind of parasitism by non-sponsoring companies trying to benefit from the popularity of an event.

François Gindrat, legal counsel at the Swiss Romande-based Union of European Football Associations (UEFA), explained that non-sponsoring companies are not allowed to use IP rights attached to the event, such as the mascot, the logo and the right to designate themselves as official partners of the events.

More precisely, Gindrat described the phenomenon of ambush marketing in the context of massive soccer events generating high revenues like the Champions League or the Euro Cup organised by UEFA.

In the context of the Euro 2012, UEFA noted 539 ambush marketing cases and raised 286 counterfeiting cases. To protect sponsoring companies and UEFA against ambush marketing, he stressed the need to have high levels of protection for various IP rights attached to the event. He said UEFA needs to work in close collaboration with the organising countries of the Euro Cup to ensure the monopoly over the enjoyment of rights and advertising tools derived from being an official sponsor.

He acknowledged that, to some extent, UEFA can have influence over national agencies to enact laws against ambush marketing. Taking into consideration investments made and money the event generates, there is a need for protection around the event, he explained.

Gindrat hinted at the fact that before the Euro 2012, UEFA entered into discussions with Poland and Ukraine so that these countries passed specific laws in accordance with the willingness and interest of UEFA for more IP rights protection of the key partners of the event against ambush marketing.

According to Kraus, this showed the emergence of private entities that are extremely rich – even richer than some countries – and powerful that interact with countries so that they enact opportunistic laws in line with demands of these companies. Kraus said this raises questions as to what role those powerful private entities should have in the international and domestic public policy spheres.

Broadcasting Rights

Kirsi Erofejeff-Engman, from the European Union of Gymnastics, described what she qualified as “the marketing of sport events,” mainly through merchandising and broadcasting rights on TV. She said that in her domain, broadcasting rights represent 45 percent of the revenues generated.

Jean-Paul Turian, adviser to the president of UEFA, said that 78 percent of the UEFA’s revenues come from the screening of games on television. Gindrat said that altogether one billion people saw at least one match of the Euro 2012. More than one billion euros in revenue were earned from the commercial exploitation of Euro 2012 – from broadcasting sponsorship rights with national television, sponsoring contracts and creation of products, and, to a very small extent, sale of tickets.

These diverse mechanisms of IP protection in sports raise questions as to the finality of sport at the professional level. From the various presentations, it appeared that the high quantity of money generated by professional sports attracts companies which perceive the association with these sports and competitions as extremely lucrative markets.

From the interaction between sport and IP, it seems that marketing is omnipresent and almost omnipotent. Erofejeff-Engman said that sport has developed “and with that, marketing and money too.”

Overall, from this close link between business and sport, one may wonder if a drift in the values in sport took place when IP law’s involvement in this domain intensified.

Tiphaine Nunzia Caulier recently graduated with a Master in International Law from the Graduate Institute in Geneva and UCLA School of Law. Through her work experience and academic interests she has specialised in international trade, intellectual property, and public health.

 

Tiphaine Nunzia Caulier may be reached at info@ip-watch.ch.

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