The Commercialisation Of Intellectual Property Rights In The Sports Industry – Part 11
The sports industry has experienced exponential growth in recent times. This advancement can be attributed to the high level of engaging sporting activities designed to entertain lovers of sports across the world and the huge economic returns yielded from sporting activities globally.2 From adults to children, millions of people unite globally to watch their favourite teams display their talents and creative efforts during a sporting activity. This large fanbase and increased viewership contribute to the enormous revenue generated by the sports industry across the globe.3
Asides the profits derived from the sale of game tickets, significant revenue is also generated from the commercialisation and maximisation of intellectual property rights (IPRs) in the sports industry.4 IPRs which protect intangible mental creations, are found in almost every aspect of the sports industry. Some of these include trademarks, copyright, industrial designs, patents etc. Stakeholders in the sports industry all have protectable intellectual property rights that can be commercially exploited and maximised if effectively managed. These stakeholders include sportsmen and sportswomen; clubs and teams; media groups; international and local sports federations like the International Swimming Federation (FINA), World Athletics, International Basketball Federation (FIBA), Federation of International Football Association (FIFA), Nigeria Football Federation (NFF); manufacturers of sports products like Nike, Adidas, Puma, Reebok; streaming and broadcasting platforms like Entertainment and Sports Programming Network (ESPN), Super Sports, Live Soccer TV etc.5 In this piece, we will discuss some essential IP rights prevalent in the sports industry and how they can be effectively maximised.
- Essential IP Rights in the Sports Industry
Trademarks are valuable IP assets in the sports industry. They are vital signifiers which are capable of distinguishing the goods and services of one sports organisation/sportsman from those of another.6 They comprise of logos, designs, team names, players' names, drawings, symbols, slogans, taglines, numbers, three-dimensional features, or a combination of any of these.7 They are a very integral part of Intellectual Property because they act as source identifiers by drawing the attention of consumers to the origin and source of a product or service.8 In the sports industry, some notable trademarks include the famous slogan of Liverpool Football Club 'You'll Never Walk Alone,'9 the silhouette logo of Usain Bolt's signature preparatory and celebratory pose,10 Christian Ronaldo's "Cr7,"11 Nike, Adidas and Puma's logo used on sporting apparels,12 the Olympic symbol of five interconnected rings etc.13 These trademarks create an association between the owner of the trademark and the mark and helps in increasing their popularity and value.
Many sports celebrities generate large earnings from their personal brands as elite athletes and from endorsement deals with other brands.14 The goodwill associated with a successful sports trademark or brand name can be a huge commercial asset for the rights owner. The prominent display of trademarks at prestigious sporting events increases sales of a product by appealing to the aspirations and emotions of sports fans, who are drawn to signs associated with a given club, sportsman or sport.15 By protecting their brand or trademark, sportsmen, sport companies and organizers of sports events can generate commercial revenue from sponsorships, merchandising and licensing agreements etc.16
Copyrights cover a wide variety of creative works of authorship and can be categorized into literary, musical, and artistic works, cinematograph films, sound recordings and broadcasts.17 In the sports industry, copyrightable works are largely utilised and are of high commercial value to the rights owners. They include photographs, sports artworks and graphics, promotional materials, sculptures of sports legends, paintings, broadcasts on television and the internet, highlights of notable moments during sporting events, sports commentaries and writings by blogs, documentaries and movies based on incidents in sports, like the movie titled 'When We Were Kings' about the heavyweight championship match between boxing legends Muhammed Ali and George Foreman.18 Copyright protection confers exclusive rights to a copyright owner, which gives the owner an opportunity to enjoy certain privileges, such as the commercial rights to do or authorise the reproduction of his/her work, rights to distribute, adapt and translate his/her work, rights to broadcast and communicate his/her work to the public etc.19 These rights can also be licensed or assigned to generate significant revenue for a stakeholder in the sports industry.
A patent is an intellectual property right that is granted to an inventor as a reward for his/her ingenuity or intellectual creativity.20 It grants an inventor the exclusive right to use his new innovation or an improvement of an existing innovation in an industrially applicable manner.21 The protection that patent ownership offers a creative, typically spans for at least 20 years in most jurisdictions, with the aid of international treaties.22 Patents in the sports industry covers various forms of innovation and improvements relating to sports products, sporting facilities and equipment, pharmaceutical products used in the sports industry and technologies in sports. One notable patented technology is Hawk-Eye Innovations' "Video Assistant Referee" (VAR) technology popularly used as a referees' assistant in football matches, to review clear and controversial errors in the course of a football game.23 The protection attributable to this patent enables the patentee to enjoy commercial benefits from his invention by entering into licencing agreements with various sports organisations and bodies like FIFA, in different countries across the world.24
- Industrial Design
Industrial designs are any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, if intended by the creator to be used as a model or pattern to be multiplied by an industrial process and is not intended solely to obtain a technical result.25 It is an intellectual property right that protects the ornamental and physical appearance of a product. It includes three dimensional features, such as the shape of an article and two-dimensional features, such as patterns, lines and colours.26 It is usually applied to products to enhance their appearance with the intention of hopefully influencing a buyer's purchase decision. An industrial design is registrable in order to enjoy protection under the law, if it is new and not contrary to public order or morality.27 In the sports industry, industrial designs include the appearance of sports apparatus and equipment, sports wears, golf courses, stadium designs, training kits and other products used in the industry. The aesthetics of a product helps to influence consumers' choices and to distinguish products of a manufacturer from that of another. Like other types of IP rights, industrial designs can yield economic benefits through licensing and assignments if protected.
Undoubtably, intellectual property rights are valuable economic assets in the sports industry, as innovation and creativity are major drivers in the world of sports today.28 IP rights underpin majority of the commercial relationships that make sporting events. The massive revenue generated from the commercialisation of IP rights in the sports industry do not only benefit the rights holder but can contribute to the economic development of a country, hence its relevance.
However, if IP rights are not effectively managed, rights owners in the sports industry may not be able to effectively maximise the benefits associated with their IP rights. It is thus essential for all stakeholders in the sports sphere to engage the services of a legal practitioner or Law Firm with expertise in IP rights exploitation and protection to assist them in effectively managing their IP rights and properly monetising them.
1 Sandra Eke, Associate and James Olusola Titiloye, Intern, Intellectual Property & Technology Department, SPA Ajibade & Co, Lagos, Nigeria.
2 See GlobalNewsWire, "$350+ Billion Worldwide Sports Industry to 2031 - Identify Growth
Segments for Investment" available at: https://www.globenewswire.com/news-release/2022/03/10/2400658/28124/en/350-Billion-Worldwide-Sports-Industry-to-2031-Identify-Growth-Segments-for-Investment.html accessed on 23rd June 2022.
4 S. Kalamadi, "Intellectual property and the business of sports management" available at: https://www.researchgate.net/publication/279641310_Intellectual_property_and_the_business_of_sports_management accessed on 23rd June 2022.
5 See WIPO, "Intellectual Property and Sports: Tracing the Connections" available at: https://www.wipo.int/ip-outreach/en/ipday/2019/ip_sports.html accessed on 26th June 2022.
6 Sandra Eke, "Protection of Intellectual Property Rights In A Franchise Agreement" available at: https://www.mondaq.com/nigeria/trademark/880910/protection-of-intellectual-property-rights-in-a-franchise-agreement accessed on 26th June 2022.
8 Sandra Eke "Why you need to Protect your Business Hashtags and Catchphrases" available at: http://www.spaajibade.com/resources/why-you-need-to-protect-your-business-hashtags-and-catchphrases-sandra-eke/ accessed on 26th June 2022.
9 See Trademark Elite, "YOU'LL NEVER WALK ALONE United Kingdom Trademark Information" available at: https://www.trademarkelite.com/uk/trademark/trademark-detail/UK00002270283/YOU-LL-NEVER-WALK-ALONE accessed on 26th June 2022.
10 See Trademark Library, Usain Bolt Trademarks available at: https://www.gerbenlaw.com/trademarks/athletes/usain-bolt/ accessed on 27th June 2022.
11 See Cyberleninka, "WELL-KNOWN MARKS AND SPORTS IN VIEW OF THE WORLD INTELLECTUAL PROPERTY DAY 2019" available at: https://cyberleninka.ru/article/n/well-known-marks-and-sports-in-view-of-the-world-intellectual-property-day-2019, accessed on 28th June 2022.
12 See Sports & leisure wear, "The Top 3 Brands in Sportswear" available at: https://www.sportsleisurewear.com/The-Top-3-Brands-in-Sportswear.html accessed on 29th June 2022.
13 See WIPO, "Protecting the Olympic Properties" available at: https://www.wipo.int/wipo_magazine/en/2016/04/article_0004.html accessed on 29th June 2022.
14 See WIPO, Sport and Branding available at: https://www.wipo.int/ip-sport/en/branding.html accessed on 27th June 2022.
17 See S.1 (2), Copyright Act, Cap C28, Laws of the Federation of Nigeria (LFN), 2004.
18 The movie When We Were Kings is a 1996 American documentary film directed by Leon Gast about the "Rumble in the Jungle" heavyweight championship match that was held on October 30, 1974, in Zaire (now the Democratic Republic of the Congo) between world heavyweight champion George Foreman and Muhammad Ali. It features archival footage of celebrities, including James Brown, B.B. King, and promoter Don King, in the lead-up to the fight.
19 Sandra Eke, "Fundamental Elements Of Copyright Ownership And Protection Under Nigerian Law" available at: https://www.mondaq.com/nigeria/copyright/866284/fundamental-elements-of-copyright-ownership-and-protection-under-nigerian-law-sandra-eke accessed on 25th June 2022.
20 Sandra Eke, "Compulsory Licensing Of Patents As A Palliative To Covid-19 Pandemic" available at: https://www.mondaq.com/nigeria/patent/936650/compulsory-licensing-of-patents-as-a-palliative-to-covid-19-pandemic accessed on 20th June 2022.
21 Section 1(1), Patents and Designs Act (PDA), Cap P2, LFN 2004.
22 For instance, Article 33 of the Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides that "the term of protection available shall not end before the expiration of a period of twenty years counted from the filing date." In Nigeria, a patent expires at the end of the twentieth year from the date of the filing of the patent application.
23 See University of Cape town IP Unit, "The Video Assistant Referee (VAR): The Patent-Protected Technology Changing the Face of Football" available at: http://ip-unit.org/2019/world-ip-day-the-video-assistant-referee-var-the-patent-protected-technology-changing-the-face-of-football/ accessed on 29th June 2022.
25 Section 12, Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria (LFN), 2004.
26 Bisola Scott, "How Do I Register an Industrial Design in Nigeria? Substantive And Procedural Requirements For Registration Of An Industrial Design" available at: https://spaajibade.com/how-do-i-register-an-industrial-design-in-nigeria-substantive-and-procedural-requirements-for-registration-of-an-industrial-design-bisola-scott/ accessed on 24th June 2022.
27 Section 13, Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria (LFN), 2004.
28 See WIPO, "Sport and Intellectual Property" available at: https://www.wipo.int/ip-sport/en/ accessed on 29th June 2022.
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