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Intellectual Property protection is a crucial aspect when organising a sports event. Exclusive rights, in fact, play an essential role in its success in both sporting and commercial terms.
In this paper we will address the following topics:
Last year (2021), Italian athletes achieved numerous successes. Just to name a few, we witnessed the impressive victory of CT Mancini’s national football team at EURO UEFA 2020®, moving on to admire the Olympic feats of Jacobs in the 100 metres and Tamberi in the high jump – among others – and rejoicing at the Paralympic medals and the surprising European double (men’s and women’s) in volleyball.
The question is… what do all these victories have in common? They were achieved in sports competitions that implement solid protection of their intellectual property, thanks to branding strategies and carefully planned exploitation of exclusive rights.
Intellectual property provides the creators and organisers of a sporting event with an important revenue stream. This economic income is linked as much to the outstanding performances of the athletes as to the clever management of the intangible property assets involved in the event (such as trademarks, patents, designs, image rights, sponsorships, testimonials, etc.).
Isn’t it true that setting a world record in the 100 metres flat has a whole different flavour when it is achieved in a recognised and followed context such as the Olympics.
All sports events (such as competitions, tournaments, recurring events, etc.) are made up of several essential elements:
Let us start with the first element… namely the sports discipline. Unfortunately, sports – like training methods – cannot be subject to patent exclusivity. In fact, they are excluded from the list of patentable inventions under Art. 45(2)(b) of the Industrial Property Code, as they are commonly covered by the term “principles and methods for play“. The rule belongs to both the European and US regulatory systems.
However, even if an idea for a sport or sporting competition cannot be patented, there are other legal protection mechanisms that can indirectly ensure that the same benefits are enjoyed as with effective patent exclusivity. For example, if the devised sport requires the peremptory use of specially designed equipment, one could decide to patent such equipment and obtain the same exclusive protection effect. Thanks to the patent on the equipment, no one else will be able to perform a competing event or even the sport itself without the owner’s permission.
Although this is not the case here, but to illustrate the importance of patenting the equipment involved in the discipline, we point out that in 1929, for example, a specific basketball was patented (USPTO patent no. US1718305).
The organisation of a sports event usually starts with the scheduling of the stages of the competition and, in most cases, goes through the drafting of game and/or participation rules, which must necessarily be made public.
The text of the game regulations is protected by copyright and Authors’ Rights. Remember that copyright arises at the exact moment the work is created (i.e. when the text is written), but it is always advisable to keep proof of authorship of what has been written. It is possible to obtain legal proof of creation through a SIAE deposit (OLAF section) or through equivalent systems such as the one offered by the Proofy platform.
If the creator of the competition were to notice an unauthorised reproduction – either in whole or in part – of the regulations, he or she could take legal action to request that the plagiarism-counterfeiting of his or her work be ascertained and consequent compensation for damages. The event regulation also resume and summarise all its pivotal elements (so-called sports format). The unauthorised reproduction, as frequently happens, could also be coupled with the unauthorised imitation of other elements such as the website, the management of the innovative phases of the competition, the shape of the prizes and their award criteria, etc. In such cases, the organiser of the “parasitic” competition could be condemned for slavish imitation or unfair competition (under Art. 2598 cc).
Now, let’s address the name of the event or its distinctive element of recognition (i.e. the trademark).
The registration of the name of the event as a trademark cannot be overlooked, because it tends to catalyse the entire attractive-promotional value of the initiative. Registration serves both to protect against counterfeiting and to defend the investment made in organising the event.
Only by registering does one obtain formal exclusive title to the name chosen for the sports event. The name must be carefully selected and defended precisely to prevent competitors from using the same trademark or approaching it by adopting similar and confusable names.
When the brand name evokes the sporting discipline or the main characteristics of the event, it risks being considered legally “weak”. If we decided to call a tennis tournament by the name “tennis tournament“, it would be an even invalid trademark for lack of the legal requirement of distinctiveness. Even if we were to insert the locality of Milan (“Milano Tennis Tournament”), the trademark would remain equally invalid or at least weak. In short, when designing a trademark, one must ensure that it unequivocally distinguishes that specific event from others.
In the sports events sector, however, there is a tendency to always use signs that are expressive of what the event is about, preferring to differentiate by secondary elements (such as the graphic aspect), by using meaningful acronyms or by inserting the name of the organiser (e.g. FIFA WORLD CUP® or DEEJAY TEN).
Within the name, other descriptive elements, such as the place where the competition takes place (e.g. Wimbledon), are also often included and end up assuming a predominant role. The category itself ends up being sublimated, by virtue of characterising graphic aspects, into a distinctive brand name (e.g. the top football categories in Europe such as Serie A® and Ligue 1®).
France’s most famous tennis competition, on the other hand, has opted since 1927 for a patronymic mark (more distinctive in itself and, therefore, also stronger in legal terms). The stadium and the tournament were named after Roland Garros, the famous aviator who first flew over the Mediterranean Sea without making a single stopover.
A supplementary protection strategy useful for the protection of a sporting event is the registration as a design of various elements peculiar to the competition.
The protection offered by design registration relates to the outward appearance of the registered element (design). Major sports events tend to register as trademarks or designs:
These registered elements also constitute the basis for the economic exploitation of the creativity associated with the event in terms of official gadgetry (or merchandising). It should be noted that these elements are often used in the course of television broadcasts that will air the competitions of the event and will offer the possibility of obtaining additional economic income thanks to their visibility. Design registration is also particularly useful for challenging attempts to unduly hook into the image of the event and to protect – in a wider sense – the characteristic visual elements, i.e. the aesthetics of the developed sports format.
Each sports competition idea or project needs to be examined individually, especially if effective legal protection is to be achieved. Each sports tournament deserves the best possible protection, in order to be able to monetise the idea and the investment incurred in the conception and organisational start-up. Having the support of experienced intellectual property lawyers from the outset can be decisive in this area, so as to correctly set up the valorisation and protection of the sports format.
In addition to the above exclusivities, there are the so-called TV rights, i.e. the rights to record and broadcast athletes’ competitions on television, digital and media platforms.
Organisations of sports events rely on broadcasters not only to attract sponsors, but also to broadcast their events and engage fans around the world. Copyright and related rights constitute the basis of the relationship between sport, television and other media.
TV rights are owned by the organisers of the sporting event and, more often than not, are transferred to TV broadcasters according to territorial criteria. The media attention of the sporting event and the brand awareness determine the amount of compensation that operators will be willing to pay to obtain the TV rights.
All the elements mentioned above (name of the competition, rules, mascot, trophies and medals) combine to create the typical sports format of the event. Just like a TV format, the format of a sports event can also be protected as a whole (to understand how read our article How to protect the idea for a ‘TV format’).
After all, major sporting events are precisely large entertainment shows where the main element is sport.
I fondi che permettono ai Comitati Organizzativi delle singole Edizioni di mettere in scena i Giochi vengono raccolti grazie alla concessione d’uso dei beni olimpici di proprietà intellettuale agli sponsor dietro il pagamento di un corrispettivo. I flussi finanziari possono essere vari e ricomprendere:
Con il contributo economico generato dal patrimonio IP, ogni giorno il Comitato Olimpico Internazionale distribuisce oltre 3,4 milioni di dollari per il Movimento Olimpico. Essi vengono utilizzati per sostenere gli atleti e le organizzazioni sportive a tutti i livelli in tutto il mondo.
Secondo chi scrive, la remuneratività dei diritti di proprietà intellettuale delle Olimpiadi è principalmente determinata da due fattori:
For a better understanding of how intellectual property rights can be used profitably, let us take the example of the most watched sporting event in the world… the Olympics.
The International Olympic Committee – the non-governmental body entrusted with the organisation of the Games – applies robust protection and wise management of intellectual property. The IP rights of the Olympics protect the integrity and uniqueness of the sporting event. Among the protected characteristic elements are:
These assets give rise to a “package of exclusive rights” that are then declined every 4 years and granted for use in the realisation of the individual Editions.
The IP protection of each Edition of the Games begins long before the host city is designated. As early as the selection process, candidate cities register trademarks and domain names and devise creative content. To do this, the International Olympic Committee grants cities aspiring to host the Games access to its copyright-protected audiovisual archives (so-called Olympic Archives) to help them develop new or derivative works in support of their bids. Once selected, the host city enters into an agreement with the National Olympic Committee to set up the Organising Committee of the Olympic and Paralympic Games that will be responsible for developing the business plan of the Games.
The funds that enable the Organising Committees of the individual Editions to stage the Games are raised through the concession of the use of Olympic property to sponsors for a fee. The financial flows can be various and include:
With the economic contribution generated by the IP assets, every day the International Olympic Committee allocates over 3.4 million dollars to the Olympic Movement. These funds are used to support athletes and sports organisations at all levels around the world.
In the writer’s opinion, the profitability of the intellectual property rights of the Olympics is mainly determined by two factors:
We have already mentioned how it is not possible to obtain a full exclusive right to the idea behind a sports event. This leads to the possibility for new competitors to enter the sports events market and to propose sports events that are alike to existing ones.
This is exactly what happened on 18 April 2021, when the proposal for a new midweek competition for European professional football, the Super League, was announced.
The Super League was proposed as an alternative to the prestigious Champions League, continental football’s top club competition. In contrast to the Champions League, in which teams from the different European leagues participate according to a criterion of merit based on placement in the previous national championships, the Super League would have seen the participation of only a few of the most important European teams organising the tournament. The participation of these clubs, due to the importance of their brands and their large number of fans, would have guaranteed an economic return – through TV rights and interested sponsors – much higher than that currently paid by UEFA to the teams participating in the Champions League.
We will focus our considerations only on the intellectual property profiles, leaving aside the exquisite competition law issues that Super League has raised.
Before going public, the European Super League Company, S.L. – a company under Spanish law set up ad hoc to manage the tournament – thought it best to apply for registration of the competition’s name. The Spanish holding company filed two trademarks with the EUIPO:
The filing of the above-mentioned applications took place two days before the press release announcing the proposal of the new competition. We remind you that it is always important to secure ownership of exclusive rights before launching a new brand or entering the market with a new project.
In this regard, let us digress briefly and take another football example on the importance of registering the name of the competition as a trademark well in advance, namely the case of EURO 2020.
In September 2016, UEFA had already filed trademark applications with EUIPO and UKIPO for the word UEFA EURO 2020® and the UEFA EURO 2020 graphic logo. Despite the postponement of the tournament due to the outbreak of the pandemic, UEFA decided to retain the UEFA EURO 2020® brand name. This decision was made for two reasons: to commemorate the 60th anniversary of the competition and to promote sustainability by not undertaking a rebranding exercise that would have “generated additional waste” by disposing of the existing stock of merchandise to which the UEFA EURO 2020 brands were applied, such as replica jerseys and souvenirs. As a defensive strategy, UEFA also applied for trademark protection by filing the words EURO 2021® and UEFA EURO 2021®. The purpose of these trademark applications (so-called defensive registrations) was to secure certain earlier rights for the organiser that could be used in possible oppositions against the filing of new identical or confusingly similar trademarks in the registers by third parties.
Returning to the intellectual property rights of the Champions League, a generic list of them is given in the competition regulations. As a matter of fact, Article 12 of the Regulations states that UEFA: “is the exclusive owner of all intellectual property rights in the competition, including all current or future rights to all types of audio and visual material of the competition, names, logos, visual identities, trademarks, music, mascots, medals, plaques, commemorative objects, trophies and certain key design elements of the official match ball. Any use of the aforementioned rights, any imitation and/or variation thereof and any other reference to the competition (e.g. associating a team name with the date of a match) requires UEFA’s prior written approval and must comply with any conditions imposed by UEFA.“
Outside these intellectual property rights, the Spanish holding company and any competitors may act freely.
For example, the Super League may commission an anthem and sign a copyright assignment to acquire all rights to the lyrics and accompanying music for commercial exploitation. In this way, a future Super League anthem would inevitably be compared to the iconic Champions League anthem written by English composer Tony Britten in 1992… but all this would be permissible.
It could also design the competition by group stages and knockout rounds as these are not proprietary profiles for the exclusive use of a single entity.
On the other hand, it could not use trademarks similar to those of the Champions League, assign a cup similar to the trophy known for its big “ears”, replicate the trophy awarding ceremonies, copy the graphics of the official balls and more generally link up with the image of the famous competition and engage in acts of unfair competition.
