Intellectual property rights in sports industry has been an under looked area
from long. This project focuses upon the existing Intellectual property laws in
sports industry and their applicability. Here in this study the laws in context
of sports and sporting events are discussed in detail with regard to existing
Intellectual property rights in India such as Trademarks, Patents, Copy right,
Trade Secrets, Design, Broadcasting rights, Ambush marketing etc.
The scope of the project is mainly limited to India therefore the discussion is
routed towards the usage of Intellectual property rights in context with sports
industry. Main highlights here are the applications and usage of the laws and
its flaws in system according to its application. Although the problems
mentioned here are universal in nature but they are discussed individually in
view of sports industry that gives a strong basis for the adaptation for new
laws and points to the scope of making amendments in existing laws.
"Sports have always been an important part of human social existence. It is so
deep-rooted in our lives and has become a great source of our entertainment.
However, today sports have transcended from entertainment or leisure and have
now gained commercial and economic significance especially in the United States,
India, United Kingdom and all through the European countries. Through
merchandising, promotion, marketing, franchising and brand building of
professional sports clubs/teams, these teams in these countries have now become
more economically significant and viable and have assumed the influences
associated only with multinational companies.
There has been an evolution of the most popular sports, such as cricket,
football, hockey, baseball, tennis, basket, car racing, and so on into mega
international events. They have also evolved into profitable domestic sports
events like Indian Premier League (IPL), Major League Soccer (MLS), the English
Premier League (EPL), The Spanish La Liga. The organisers of these sporting
events on the international level have been able to reap immense financial
rewards by inter alia exploiting and leveraging on aggressive marketing campaign
taking advantage of the marketable potentials resident in these sports.
Therefore it has only become sound for professional sports teams and
corporations to exploit and capitalize on intellectual property rights. These
intellectual property rights are usually exploited via merchandising,
advertisement, exclusive and non-exclusive licenses, broadcast rights and so on
and so forth."
In this project, the author will identify and examine the relationship between
Intellectual Property laws and the sports industry limiting the study to
Trademark and Copyright laws in India, highlighting the grey areas in the IP
legislations with respect to sports industry.
Copyright, Broadcasters Right and Social Media
"Copyright in sports is protected in India under the provisions of the Copyright
Act 1957, vests in various components of sporting events which includes the
artwork connected to the promotions, slogans, images of a player, event etc.
Advancement in communication technologies such as satellites, cable, broadband,
and mobile internet have revolutionized broadcast and sports coverage and in
turn enabled people around the world to take part in the excitement of major
Copyrights along with Neighbouring rights provide protection against
unauthorized broadcasts and underpin the relationship between sports and
television media. For the exclusive right to broadcast sporting events live, the
media organizations pay huge sum of money.
India has signed Berne Convention of 1906 for the Protection of Literary and
Artistic Works and the International Copyright Order, 1999. Though the fact that
the registration of copyright is not mandatory in India and is comparatively
easy to protect under the Indian laws, it is advisable to register the copyright
in India as the copyright registration certificate is accepted as a proof of
ownership of copyrights in courts and by enforcement authorities."
Social media platforms have revolutionized the way fans receive sports content.
Right owners in the sports business and their business partners are facing
emergent challenges in the ever growing social media background of vines, GIFs,
live streaming and piracy. contemporary technology makes it easier to replicate
and distribute forged goods. regrettably, the law has been slow to pull
alongside the speed of technological development.
Issues arise when a person who is watching a match/sports event with a valid
ticket takes photographs and videos and uses them to mint money out of it i.e.
by selling them or uploading it on internet or by going live on their website.
Now the question is whether it is not an infringement of broadcasting rights of
the authorised broadcaster? If we go by the definition of the broadcast which is
given under sec 2(dd) of The Copyright Act 1957, it means communication to the
- By any means of wireless diffusion, whether in any one or more of the
forms of signs, sounds or visual images; or
- By wire, and includes a re-broadcast.
And communication to the public means making any work available for being seen
or heard or otherwise enjoyed by the public directly or by any means of display
or diffusion other than by issuing copies of such work regardless of whether any
member of the public actually sees, hears or otherwise enjoys the work so made
Therefore it is clear that the uploading of video by a person sitting in the
stadium is a broadcast and thereby a violation of broadcasters right. So the
grey area here is how to stop people from photographing and recording in the
Secondly who will have copyright over those photographs and videos? The answer
to this question is obvious the person who is recording or photographing will
have copyright over it. But is it justifiable? The ticket he purchased is only
for watching the match and not for recording or photographing for his commercial
Thirdly when a person is downloading the videos uploaded on the authorised
broadcaster's website and sharing/uploading it on his website the substantial
part of the event will it be regarded as copyright infringement? (Some websites
are paid on the basis of number of hits/day)
Fourthly whether the streaming of live match in pubs/bars/restaurants on the big
screen without the due permission for disseminating the live broadcast will not
amount to infringement of broadcaster's right? The subscription which they have
taken is only for their personal use and not for commercial consumption. By
showing the live match they are inviting the fans i.e. using the live broadcast
of sports for their own commercial interest, will it be considered as
infringement of broadcasting rights and their copyright? Clearly the present
Indian Copyright law does not address these issues.
Another major issue is Broadcasters rights do not protect copyright in the work.
Rights of broadcasting organisations envisaged by the Indian Copyright Act 1957
as amended in 1994 are a set of exclusive rights given to broadcasters. These
rights are essentially neighbouring rights, which do not protect the copyright
in the work but the broadcast itself.
As held in Espn Star Sports v Global Broadcast News Ltd. and Ors
, Section 13
and 14 of the Copyright Act, makes it clear that copyright will subsist only in
work. 'Work' does not include 'broadcast'. As a result there will only be a
broadcasters right in the telecast of live events communicated to the public as
provided under Section 37 of the Copyright Act, which is separate and distinct
Therefore, the Broadcast Reproduction Right, which is different
from Copyright, is with the Broadcasting Organization which is causing the
Broadcast to be communicated to the public under their Logo by any means of
wireless diffusion or by wire, as per the Definition of Broadcast under Section
2(dd) and the definition of the Communication to Public under Section 2(ff) of
As such Section 61 is not applicable in a proceeding for infringement
of Broadcasting Reproduction Right as that provision is only limited to the
cases where an exclusive licensee of a copyright institutes a suit or proceeding
for infringement of copyright.
Broadcasters of sports events in the UK enjoy copyright protection in
transmitted programmes as broadcast works. Fans videoing, editing, uploading
and/or distributing clips of sporting action from live footage may therefore be
infringing the broadcaster's copyright. However, the same is not the case in
Trademark with reference to Personality Rights, Merchandise Counterfeiting and
Symbols and Team names (Rajasthan Royals, Mumbai Indians) create a level of
association with the public and fan followers and help the popularity ratings of
any given team, club, and players.
"As sports have developed into a global business, so too has the significance of
athletes' image rights. Due to their celebrity class, even the names of players
such as Sachin Tendulkar, Dhoni, etc, attain the status of trademarks.
Businesses associate their products and imagery with celebrities and support
sporting events. Celebrity athletes have personality rights otherwise known as
the right of publicity which stops not permitted use of their names and other
individual attributes. This brand image and reputation is then converted into
financial profits through ads, brand ambassadors, goodwill and status of
In India, personality rights are by itself not recognized. They are normally
invoked through Right to Privacy provided under Article 21 of the Indian
Constitution or through Right to Publicity surmised from Article 19 of the
Indian Constitution. Personality rights are either protected as right to privacy
or as the property of an individual.
For protecting their trademarks in Indian courts, it is desirable that the
organizers, team owners and sports gear manufacturers must opt for registration
of their team names, logos, venues, captions, taglines and slogans as trademarks
under the Trade Marks Act 1999. Also there should be an initiative on the part
of the players to register their names, photographs and caricatures as
If without the consent or license of the respective owners of
trademarks, a third party who is not authorised uses trademark which results in
damage to the goodwill and reputation of the stakeholders, it amounts to
dilution of goodwill and reputation, unfair trade practice, unfair competition."
"The Trade Marks Act 1999 provides both civil and criminal remedies and which
are simultaneously available against infringement and passing off action. In
India Registration of trademarks are not mandatory, people who seeks protection
can enforce their rights in the court of law and interestingly violation of a
trademark is a cognizable offence in India and therefore criminal proceedings
can be initiated against the accused.
This kind of enforcement mechanisms are expected to boost the protection of
trademarks and to reduce infringement in trademarks in India. But in reality
many of the sports merchandise is sold without any authorization from the
team/club owner. "
Of course, the fight against counterfeiting does not end once a mark is
registered. Lack of protection and enforcement leads to counterfeiting of
products, which has gained momentum in India as tournaments such as IPL
continues to grow in popularity.
Small shops in every nook and corner of cities in India can be found selling
unauthorised cigarette lighters, merchandise, stationary, flags etc. with IPL
team or other international teams, European football clubs logos on them. For
example in 2017, a sports goods seller in Chakarpur was arrested by Gurugram
police for allegedly selling fake footballs of Nivia brand, in a rare usage of
the intellectual property laws. He was booked for cheating and violation of the
Indian Trade Marks Act. This was apparently the first time the Indian Trade
Marks Act was used to seize fake footballs in the capital city.
In the case of Skechers Usa Inc & Ors v. Pure Play Sports
the plaintiffs offer
footwear in distinct categories, one of them being 'SKECHERS GOwalk footwear'
line that was introduced and launched in 2011.The plaintiffs claimed that their
product reflects a combination of style, comfort, quality and value that appeals
to a broad range of customers. The plaintiffs claimed that the defendant had
introduced and were marketing footwear that was an exact replica and lookalike
of the footwear designed, sold and marketed by plaintiffs under GOwalk 3 series.
Ultimately, the Delhi HC granted an ad interim injunction in favor of
There are a number of ways in which a company or a franchise can protect its IP
and fight counterfeiting. Many IPL franchises have created anti-counterfeiting
positions within the company. One of the greatest problems which they face is to
gather information and to be aware of infringing activities.
Thus it can be argued that the police can raid those shops which are selling
such merchandise and seize the infringing material but the law does not address
the scenario where the same thing is sold from abroad through e-commerce
websites. Clearly there is no provision in that regard in the Trade Marks Act
Now moving further to the Ambush marketing which is not a very known concept in
the industry but a very important aspect in protecting the brand name.
"Ambush Marketing means 'an attack from hidden position'. Protection against
ambush marketing is one of the most important aspects of Intellectual Property
Rights in sports. Ambush marketing has acquired a huge space in sporting events
and it refers to companies promoting their brands or products by associating
them with a team, league or event without paying for the privilege. In the
absence of any specific law in this regard courts find it difficult to deal with
the issue arises in the sports industry with regard to ambush marketing."
Unfortunately there are no laws regarding ambush marketing in India, and this
has been taken advantage of by many advertisers, with sports leagues such as the
IPL having no tools with which to fight back. For instance with the starting of
the IPL season or cricket world cup different restaurants, hotels, e-commerce
websites starts giving lucrative discounts and offers which can be availed by
applying coupon code which includes name of the league/event i.e. for example
'IPL20' for 20% off on merchandise on Printavenue or 'HAPPYIPL' used by Ola or
'YOCWC' used by Yo China!
Moreover these coupons are not advertised rather sent
to the specific person by mail or SMS. "In one case, Life Insurance Company (LIC)
launched an advertisement with the tag line 'predict and win' during the fifth
edition of the IPL in 2012. The advertising campaign featured questions about
the IPL, such as which four teams will play in the semifinals of IPL 2012? LIC
was not an official sponsor of the IPL event and had not paid any sponsorship
money for launching such an advertisement. It was a clear-cut case of ambush
marketing, but since the laws were absent, the IPL organizers had no remedy.
In another instance, Indian consumer goods company Parle Agro, which was not the
official sponsor for the IPL event, launched the Indian Food League (IFL)
website for its popular snacks brand Hippo. The campaign was based on the Indian
Premier League viewer's choice award of teams, with viewers of the website
choosing their favourite food dish from a particular region and whichever region
got the highest number of votes won the IFL."
"The creativity of these ambushers makes it necessary to adopt specific national
legislation in order to prevent ambush marketing and also to implement
strategies to counter the threat of ambush campaigns by securing trademarks,
copyright registrations for all images, logos in sports events by entering into
contractual obligations with explicit terms and conditions for the use of these
Intellectual property rights. Many countries have already considered specific
ambush marketing legislations.
The International Olympic committee (IOC) has adopted the naming and shaming
technique in the fight against ambush marketing. This technique or procedure
involves the announcement of corporations guilty of ambush marketing at public
press conferences. The IOC also insists that host countries enact domestic laws
to protect IPRs associated with the Olympic Games. Another scheme adopted by the
IOC is its insistence on the promulgation of domestic legislations to ensure the
protection of intellectual property rights of the Olympic Games especially
trademarks and sports events marks and by extension give the exclusive rights of
association to the sponsors of the Games."
Conclusion and Suggestions
Intellectual Property violations in with regard to Trademark, Copyright, Design,
Patents etc. are inevitable as sports industry is commercialized. Intellectual
Property Rights along with the legal protection helps to secure the economic
value of sports. Commercial exploitation of the diverse species of intellectual
property rights would not only result in an upward drive of the economic
progression of the various domestic sports associations/sports events organisers
but would also increase the individual profit margins of individual sportsmen in
the country while attracting international interest and foreign investment. The
author would now like to give suggestions with regard to filling the gaps of the
grey areas which were highlighted above.
- The problem of people taking photographs/videos and going live on
internet can be taken care of by mentioning in the terms and condition of
the ticket that photography and recording is prohibited in the stadium. Also
there can be prohibition within the Ground of any equipment, which is
capable of recording or transmitting (by digital or other means) any audio,
visual or audio-visual material or any information or data in relation to
the Match or the Ground.
- Those Cafes, bars, pubs, restaurants and similar establishments who
telecast the live matches do it as a practice to boost their sales by
attracting more visitors, can be restrained from, in any manner, exhibiting,
communicating to the public, making available for viewing and/or publicly
performing the live matches, without obtaining a licence from the broadcasters or event organisers.
A clause to the same effect i.e. prohibiting the illegal telecasting of live
sporting events should be inserted in the copyright law with the ambush
marketing clause. Power must be given to the police officials/law enforcement
agencies to visit premises either suo moto or when intimated to them by the
organisers / broadcasters / anyone about the infringing activity taking place in the
cities they are posted in, including premises of the identified infringers, as
well as the other unknown infringers.
- India should frame legislation for personality rights and also try to
build a successful sponsorship program so as to protect the image and status
of athletes/players of our country like other countries of the world.
- To stop counterfeiting teams/clubs should gather information and to be
aware of infringing activities, through the use of various monitoring
services to detect infringement as well as monitoring websites closely in
light of the large and growing number of websites engaged in the business of
- In addition to information gathering, these internal teams should also
work closely with government officials to fight infringement. Customs is an
important part of any IP protection plan in India and offers several tools
to help rights holders. The Intellectual Property Rights (Imported Goods)
Enforcement Rules 2007 introduced a recordal system to strengthen border enforcement with the
objective of preventing the entry of counterfeit goods into the country.
holders should take advantage of this mechanism and register marks with Customs
offices to prevent the movement of counterfeit goods into the country. In
addition to Customs, rights holders should also work closely with local law
- Given India's large population, rights holders should also build
relationships with the public in its fight against counterfeits i.e., by
educating consumers and holding workshops on what are fake products and how
they dilute brands.
- Coming to the Ambush Marketing, it would also be immensely beneficial
for anti-ambush marketing clauses to be introduced in each of these
and additionally sui generis a new anti-ambushing Law should be enacted to cover
The adoption of these measures would not only encourage indigenous
businesses to invest and innovate within the Indian sports industry but will
also encourage foreign investors and sponsors to invest in the Indian sports
sector in general and sports events, with such statutes in place it would
suggest to the international business community that their investments and IPRs
would be secured.
India needs a specific legislation which deals with Sports Industry in general
and intellectual property rights arise in sports industry in particular. This
Law would be in the shape of a unique sports proprietary right to protect
innovation and creativity in Indian sports.
- Sujith Aswathy, 'Sports And Intellectual Property Rights � An Overview
On The Indian Standards' (2016) 2 Journal Of Legal Studies And Research
accessed 14 February 2019.
- Copyright Act 1957, s 48.
- Tanya Dunbar, 'Combating Online Trademark and Copyright Infringement:
ICE and DOJ Domain Name Seizures New Tools In the Government's Efforts to
Combat Online IP Infringement' (2012) 2 Pace IP Sports & Entertainment Law
Forum < http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1006&context=pipself
> accessed 14 February 2019.
- Copyright Act 1957, s 2(ff).
- Atharva Sontakke and Himaja Bhatt, 'Scope of Rights of Broadcasting Organisations under Copyright Act, 1957' (2014) 1(1) RGNUL Student Law
Review accessed 14 February 2019.
- Espn Star Sports v Global Broadcast News Ltd. and Ors 2008 (36) PTC 492
- id (n 5) 18.
- Jonny Madill and Jack Jones, 'Sharing Sports Clips in the Digital Age: 6
Things You Should Know' (2016) LawInSport accessed 14 February 2019.
- Zoya Nafis, 'Personality Rights - Need For A Clear Legislaton - Privacy
Protection - India' (Mondaq.com, 2014) accessed 14 February 2019.
- Trademarks Act, 1999.
- TNN, 'Sports goods seller held for selling fake footballs' Times of
India (Noida, 27 Jan 2017) accessed 14 February 2019.
- Skechers Usa Inc & Ors v. Pure Play Sports 2016 (231) DLT 299.
- Prashant R Sharma, 'Ambush Marketing- The Concept' (2015) 2(4)
International Multidisciplinary Research Journal accessed 14 February 2019.
- Seema Kadam, 'A Study of Ambush Marketing with reference to Indian
Premier League' in Snehal H Mistry (ed), Emerging Trends in Business (CK
Pithawalla Institute of Management, Surat 2014) 265 accessed 14 February