Sports Federations Keep Up Defence Against Possible IP Infringers

Constant vigilance is needed to protect intellectual property rights in sports from creative efforts by “ambush marketers” and others seeking to take unauthorised advantage of sports events, event organisers say.

Intellectual property rights are seen by industry as a major pillar in sports entertainment as they protect the exclusivity of sponsors and the financial capacity of organisers. Trademarks are used to protect those IP rights but strategies like ambush marketing, in which non-sponsor competitors take advantage of a sports event sponsored by others, challenges those rights, speakers said at an event in Geneva on 2 February.

The seminar about sports and intellectual property was organised by the University of Geneva Faculty of Law and gathered major sports events professionals, lawyers and professors, including from Switzerland, which is host to many of the world’s sports committees.

Sports committees or associations such as the International Olympic Committee (IOC) trademark their logo, name, symbols, flags and other distinctive signs to protect marketing partners and television rights said Marianne Chappuis, lawyer for the IOC. For example, television, internet and mobile phone rights represent a growing income, from $1.2 million in 1960 for the Rome Olympic Games to $1.74 billion in 2008 for the Beijing Olympic Games, she said.

The IOC also benefits from the 1981 Nairobi Treaty managed by the World Intellectual Property Organization, which protects the Olympic symbol (five coloured entwined rings) and which has been ratified by 48 countries, said Chappuis.

When applying to be a Olympic host country, candidates have to provide documentation indicating that appropriate measures have been taken to protect IP rights, such as domain name registration and protecting the word mark for the city and year, such as London 2012. Candidate countries also have to describe the legal measures in force in their country to protect the Olympic symbol, emblems, logos, marks and other Olympic-related marks and designations, according to the IOC website.

On the international level, the IOC trademarks Olympic signs but the national committees of host countries have to register trademarks on their own territory. Sometimes national laws can adequately protect the Olympic symbols and sometimes the host country has to pass an Olympic law. Most of the time, after the Olympics are over, the law remains in the host country legislation, Chappuis told Intellectual Property Watch.

Olympic laws are clearly well beyond the laws of common legislation, said Ivan Cherpillod, lawyer and professor at Lausanne University Law Faculty, adding that they are outside the common rules framework of unfair competition.

Internet domain names are a growing concern, said François Gindrat, lawyer for the Union of European Football Associations (UEFA). Many domains have already been registered with reference to Euro 2012, the quadrennial European football event. As the third most important world sports event, Gindrat said, the Euro faces a lot of infringement, whether it is trademark infringement, copyright infringement, ambush marketing, illegal tickets sale, or promotional use of tickets, which remains sponsors’ privilege. Unauthorised broadcasting of events on giant screens or unauthorised internet broadcasting on sites such as YouTube or Dailymotion also are among the most common infringement cases.

Howard Stupp, IOC legal affairs director, said also that domain names are a growing problem and the project at the Internet Corporation for Assigned Names and Numbers (ICANN), the internet technical oversight body, to open the internet to new top-level domain names was going to complicate the IOC’s tasks in tracking people wanting to use the word “Olympic”.

As with the IOC, the UEFA asks that host countries implement preventative measures against IP infringement, such as an IP protection programme, internet surveillance or special general conditions relating to ticket sales.

Ambush Marketing Difficult to Fight

Ambush marketing describes the association from a company, its products, its services or trademarks, to a major sports event to benefit from its reputation or its symbolic value, without the authorisation from the organiser, said Cherpillod. It is an attempt to profit from a captive audience.

Sports organisers consider that ambush marketing threatens exclusivity for the sponsor, dilutes the distinctive power of trademarks and might push the sponsor to lower its contribution if infringement happens too often, but it is not necessarily illegal, said Cherpillod. Sometimes trademark protection cannot be applied against ambush marketing except when it infringes the protection of distinctive features.

There are many forms of ambush marketing, such as a company sponsoring a sub-category of the event, like in 1994 when Nike sponsored press conferences with the US basketball team while Reebok was the official sponsor of the event. Purchasing advertising space in the vicinity of the event or in the train stations or airports near the event, use of official tickets or products are all forms of ambush marketing, according to Cherpillod.

To fight ambush marketing, trademark protection, copyrights and neighbouring rights should be used. However, the extent of the rights in these instances is not clear. Very few cases of ambush marketing have been taken to court, he told Intellectual Property Watch.

Pranvera Këllezi from the European Broadcasting Union said that there is an upward trend in the commercialisation of sports events which is leading to an increase in broadcasting rights. Another trend is that broadcasting of sports events is gradually migrating toward paid television. One of the challenges is to ensure that diversity is preserved in sports broadcasting so that the largest audience possible can access less well-known sports on free television.

With new technologies and growing internet use, public broadcasters need solutions to protect broadcasting rights, said Këllezi, adding that public broadcasters share the same interest in this fight against infringement as sports federations.

A less obvious goal of IP rights in sports, the management of sports image rights, can be a useful tool to reduce taxes for athletes with substantial income, said Nick White, a UK lawyer specialising in image rights. By attributing part of an athlete’s income to image rights agreements, the athlete is able to split the income between UK image rights and overseas image rights, and pay UK corporation tax on his or her UK image rights while being exonerated for the overseas image rights, saving dozen of thousands of pounds in taxes per year.

According to Stupp, a better understanding and better collaboration are needed between sports entities and relevant authorities like trade registers, judges and courts. “The public sometimes might think that we are brash,” Stupp said (original in French). “But pirates are a lot brasher than us and sometimes we need a hand because if not it could harm the consumer.” He also advised sports federations to carefully manage the sponsors’ expectations.