Sports, intellectual property rights and personality rights PART 1
Submitted by-Subhash Bhutoria
So, Last week we planned an interview with Mr. Subhash Bhutoria which turned out into an hour long Lecture on Sports and its correlation with Intellectual property rights. It was in the evening at around 7 pm at Krida Legal office, when after finishing all his meetings he asked us to join him in his office cabin with his three associates already sitting there and the normal introduction of both the teams of SportsGranny and Krida Legal started. Subhash started to explain about the work he does and he gave a slight introduction about the whole concept of Intellectual property rights. I just realized he has too much to say and he can easily explain everything in a very simplified manner. I asked him if he can just carry on like this because it was like a masterclass and as a greedy law student I don’t want to miss the chance to get educated and listen to this amazing lecture. I realized how bad my document of interview questions must be feeling at that time which I abandoned, majestically !! But this lecture was worth listening.
So, here we are presenting you written excerpts from that lecture. This lecture is an overall introduction about the correlation between sports and intellectual property rights. Also, he has discussed about the broadcasting and personality rights issues into the field of sports.
Subhash is a National Law School (Jodhpur) graduate with vast experience of work from various law firms and litigation. Subhash is an expert in laws relating to intellectual property rights, art and fashion.
Subhash heads the Intellectual Property, Art & Luxury Law practice of the Firm. He has rich experience of IP prosecution, transactions and enforcement. Also, Subhash has been assisting and advising the clients through the complete IP life cycle, their commercialization and effective enforcement. At Krida Legal, he is advising and representing few of India’s leading art galleries, artists, fashion labels, sport and gaming firms, F&B companies, Hotels and hospitality businesses as well as unicorn startups.
So I will give a very brief introduction to what are intellectual property. Intellectual property can be classified into two broad subheads viz. industrial property such as patents and trademarks and creative rights such as copyright, performer’s rights and author’s special rights. In India, we have separate statute for different types of intellectual property rights. These laws are in coherence with the international conventions and treaties, India is signatory to. Laws and procedure may differ in different jurisdictions… to give an example, China is a first to file country unlike India, which is first to use (in relation to trademark rights).
I will go just a little further in the domain of intellectual property and how do you classify each property as an intellectual property . So what is patentable is anything which is novel which is an invention , which has a utility and it can be produced and that is not obvious. To illustrate this in simple terms, cellular phone is an invention, which was not anticipated in basic telephony and involves inventive step. Then you have trademarks, anything which is a source identifier, your name is your trademark. So people who know Ekta when somebody will say Ekta then Ekta would look up and say ok I am Ekta.
It is important to note that only that mark which can be graphically representable, can be considered as a trademark. Be it a word, or a tagline or logo, any indicia, which distinguishes your business, products or services, from that of others, is a trademark. so for Apple, the bitten apple is a logo, which anyone will look to it and say oh it belongs to apple . When somebody looks at ‘just do it’ they would say its Nike, so that is a trademark.Tagline although is a weak trademark but because of its secondary acquired distinctiveness, it has attained a level of goodwill and reputation so we associate only with Nike and hence it functions as an trademark. Now, patent is a strict monopoly, trademark is in perpetuity but you have to keep renewing it and then you have copyrights.
Copyright exist in software, in photographs, in art and artworks and any form of original literary, musical and dramatic work. Copyright can be claimed in any original work. For illustration, lets compare two cell phones, which work on the same technology and provide same physical features. However, they have different designs, OS etc. Therefore, while the phones may not be novel, but the design (art work) and the OS, which is different from the others, may be original and hence a subject matter of copyright. So it is important to note the qualification for a protectable intellectual property rights Trade Secrets are also considered as intellectual property rights. However, there is no specific law in this regard as yet. Through contractual obligations as also through copyright laws, Indian courts have dealt with trade secret related disputes. Start-ups often share their business ideas with investors / VCs, which can be valuable trade secrets and ought to be protected by means of NDA and confidentiality agreements.
Sports and Gaming business deals with all these forms of intellectual property rights, in significantly large extent. During the discussion, we will try to identify the prominent presence and use of intellectual property rights in this business domain. They exist in the sports as also are inherent to the sportsperson. From signing player, to organizing a sport event, from broadcasting the event to selling merchandise, all these sporting activities and business opportunities entail IPRs prominently. Sports also involves unconventional rights like personality rights. Popular players like Sachin Tendulkar or Roger Federer or Lionel Messi has immense goodwill and reputation associated with their personality, which in turn, can be commercialized in various means and manners. Since these rights are not defined clearly, it may be protected as a trademark such as Usain Bolt’s Bolting stance is a registered trademark in various jurisdictions or a popular move on the field as a performance (copyright).