Intellectual Property in Sports and Entertainment

The aspects of sporting products, services, or events in which intellectual property (IP) may come into play are immense. From technology used in swimwear that reduces the drag of the water, to data chips imbedded in a cricket season ball to collect data in real time, the possibilities are endless. This was the topic of a virtual flash briefing held for INTA members in Asia on October 14, 2022. Entitled “IP in Sports and Entertainment—Staying in the League with Moving Goalposts,” it was a well-attended and lively briefing, reflecting the great momentum with which the sporting and entertainment industries are forever evolving.

The event featured a conversation between INTA member Purnima Thacker (Mulla & Mulla & Craigie Blunt & Caroe, India) and Jiggy George, Founder and Chief Executive Officer at Dream Theatre India Private Limited, India’s premier brand management and licensing company. Here are five key takeaways from the briefing which may prove useful to those in the game of brand licensing in the field of sports and entertainment:

The Players

The web of players in the sporting industry is growing only more intricate with new businesses and platforms offering fans interactive products and services.

Understanding the complex relationship between the parties involved in sports transactions is key. This means devising a magic formula that balances the rights of sponsors, with the image rights, copyright and trademark rights of sports celebrities, broadcasters, merchandizers, sporting goods companies, and now also the fantasy gaming platforms.

Coupled with protecting the various players’ rights, it is useful for IP owners—as well as the other parties—to be mindful of and try to anticipate the potential liabilities and who might be held responsible for certain acts and omissions. These could be related to product liability issues or how an incident in a sports celebrity’s life could adversely impact the reputation of the brand the celebrity is endorsing.

The Differences Between Celebrity Licensing and Celebrity Endorsements

Though often used interchangeably, it is important to recognize the difference between the terms from a legal perspective, in order to determine which—celebrity licensing or celebrity endorsements—is the better fit for the brand.

Celebrity endorsements involve a living celebrity endorsing a product or service where the audience may even be led to believe that the celebrity personally uses the product or service. On the other hand, celebrity licensing could cover both a living or deceased celebrity where the product or service is portrayed to be that of the celebrity, such as a sportswear clothing line of a sports personality. For instance, the MICHAEL JORDAN line of NIKE footwear. While they are similar marketing strategies, the level of the celebrity’s involvement usually differs. The nature of the relationship may also have a bearing on the rights of parties to enforce IP rights against third parties.

Adequate IP Protection

A key consideration is to ensure that all IP aspects of a product or service are adequately registered and protected in the target jurisdictions. It’s advised to take these steps early in the process with mindfulness on the possible brand extensions and the potential of the brand to diversify into completely different fields. For instance, the expanding businesses of Apple Inc. from computers to fitness brands that could potentially evolve into providing services which are purely in the sporting industry.

Restrictions and Post-Termination Rights

It’s important to ensure clarity on restrictions during the contract period and post-termination for each of the parties involved in a collaboration. Let’s say, for instance, a celebrity’s name becomes synonymous with a sports shoe as part of a celebrity-licensed range of sports goods. What might be the rights of the sports goods company and that of the celebrity in the event of a falling out between the two or if the celebrity makes a public statement which does not resonate with the sentiment of the brand? Also of significance is the dispute mechanism that parties agree upon and the governing law and jurisdiction which the collaboration is subject to.

The Risk of Being Ambushed

Sponsors often make huge investments in sporting events. Ambush marketing can, however, have multiple repercussions on the event sponsors. Preemptive steps and preparedness of the marketing and legal team could to an extent mitigate the occurrence or the impact if the sponsor is ambushed.

Conclusion

Innovative alliances and moving goalposts certainly keep the game exciting! A holistic view with consideration to some of these key aspects could result in smooth collaborations and true sportsmanship.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. 

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