World IP Day 2019: “Reach for Gold: IP and Sports”

Nikkie Kitching
Jul 12, 2019
8 min read

Every year, World Intellectual Property Day falls on the 26th April. This year's theme centres around the world of competitive sport. Intellectual property is highly appreciated in sport as it strengthens the relationship between companies, athletes, brands and the media.

Let's break it down...

The best way to delve into how intellectual property pervades through sports is to first break it down into the various types of intellectual property that exist:

Trademarks
Copyright
Patents
Design

1. Trademarks

Let’s first look at trademarks. A trademark is a sign or symbol that identifies your business, product or service. It acts as a way to be recognised and stand out from the competition. Once they are registered, they can be used to prevent unauthorised third parties from using identical or confusingly similar trademarks.

Trademarks may be identified by the abbreviation TM or SM (for unregistered marks) or the ® symbol (for registered marks). If an individual or company use an existing trademark without permission, the party whose trademark they are using may be able to claim infringement for a registered trademark or "passing off" for an unregistered trademark.

Sports examples:

Clothing and merchandise
Branding and logos
Sports products

On a worldwide context, some sports symbols are well known. Most people would recognise the Nike ’swoosh’, the Premier League lion and even the five interlocked rings of the Olympic Games. As consumers, knowledge of brands can have a great effect on the way we purchase goods. We choose the brand with the best quality or reputation or perhaps our sports heroes wear a specific brand and we want to mirror them to be ‘cool’.

Nowadays, plenty of famous athletes who are known as the best in their field are creating their own personal brands centred around their image and success. They use what we call image rights. This is anything from a picture of an athlete being used on a website or the appearance of an athlete in a commercial. If an athlete is talented and has enough 'star power', the club or team they work for will contract with image right companies and commercial partners to negotiate deals to ensure their players are shown in the best professional light. Though image rights do not actually exist as a separate law, if used well they have the potential to become an athlete's biggest asset.

Usain Bolt, for instance, is not only known for being the "World's Fastest Man" but also for his signature ‘lightning bolt’ pose. Whilst it is not possible to trademark a physical pose, the image of Usain’s silhouette can be used as a logo or symbol for future merchandise or related products. Usain holds several trademarks, not just for his signature pose but also extends to merchandise and even catchphrases. Another famous and similar example is Air Jordan, the silhouette of Michael Jordan dunking a basket, better known as the ‘Jumpman’ symbol.

With thousands of existing brands there have naturally been trademark disputes in the past. One example is that of Nike and Frank Industries. Frank Industries is an Australian brand which hold trademarks with the letters LNDR on their clothing. They have been using this trademark in the UK since 2015. In 2018, Nike started a new campaign called "Nothing beats a Londoner" using the sign LDNR alongside their 'swoosh' symbol. Frank then sued Nike for infringement and applied for an injunction to prevent further infringement. Nike argued that LDNR is an abbreviation of "Londoner" and a reasonable person would recognise this. The court eventually ruled in favour of Frank Industries. They stated their registrations were valid and Nike had breached this even just by switching the letters in the campaign. In addition, Nike was unable to prove that a reasonable person would know what LDNR was short for.

With the creative industry booming it can be difficult to create a trademark which is unique. However, if the relevant research has been conducted and a trademark is registered and used efficiently it can take a business or product and place it at an international scale; sometimes even creating a lasting legacy.

2. Copyright

Copyright relates to the expressions of an idea. Though it sounds self-explanatory, this is the right to copy ie. anything that is written, drawn, photographed or recorded. Most people will recognise the © which indicates a person's legal rights. In order for work to be protected by copyright, it needs to be both original and tangible; meaning that it must be something no one has come up with before and needs to have been physically expressed. One of the great things about copyright is that your work is protected for a lifetime; lasting for many years after you die.

Sports examples:

Broadcasting and media
Football chants/songs
E-sports/video games

In terms of what makes the most money, broadcasting and media play the biggest part. For the lucky fans out there tickets are purchased to watch a sports event live. Nowadays, the advancement of technology allows us to witness a sports event without the means of actually being in the stadium or field. Broadcasters and media companies pay for the exclusive rights to broadcast major sports events around the world. The revenue obtained allows sports companies to pay for things like apparel, equipment and the management of stadiums to name a few.

Sports teams have also started to collaborate with tech companies and social platforms to ensure that when users are watching sports, they also have the opportunity to become more interactive and share to social media easily. A fantastic example is the recent collaboration of NFL and Oculus Rift. Fans will be able to experience a sports event through virtual reality which allows full immersion through the use of 3D holograms. Currently, Oculus Rift is researching into the types of sports that would not only give the user a physical experience but an emotional one as well. One example is baseball which is known to be an American past-time.

One of the main threats to copyright is that of illegal streaming. Thousands of streaming services found online are mostly pirated, giving the viewer access to sports feeds without having to pay. The Premier League for example is broadcasted in 200 countries. Currently, Sky and BT Sports are the only companies who hold the live rights.

A recent survey conducted by the BBC showed that more than a third of viewers watching the Premier League were using illegal streaming sites. When instances like this occur it can be difficult to pinpoint who exactly is streaming illegally. The Premier League have however invested into technology which blocks thousands of illegal sites and encourages anti-piracy.

As expected, each country's copyright laws are different. This combined with the increase in shared content online can cause more challenges for copyright. However, 2019 is starting to see more involvement by social media companies to not only ensure content is legal but also to enhance user experience.

3. Patents

Patents are put into place to ensure that an invention or idea is protected and prevents other parties copying this. In order for a patent to be granted, the idea put forward must be new, something that can be made or used and not just a modification to an existing invention or idea. Another feature of patents is that they are territorial meaning that they only take effect in the jurisdiction they are filed in. For example, if you file a patent in the UK it will only be valid in the UK. Using or selling your invention in a different jurisdiction will require filing in separate countries or through treaties which allow you to make single application that will be held valid in multiple countries. This of course can be more expensive and take longer to process.

Sports examples:

sporting and fitness equipment
energy drinks, snacks and supplements
the invention of an addition to an existing sport/game

The advancement of technology and the discovery of new materials has allowed companies to innovate and create further. This can be anything from "instant replays" of a game to the invention of the FitBit. An excellent example of how patents are applied is through sporting footwear. Whilst you will have separate types of footwear for the specific sport you play, more often than not, trainers are the most common type that is worn. With the help of technology and materials, people not only buy the trainer that looks ‘cool’ but also the one that’s more lightweight, stronger, avoids injury and optimises performance.

Whilst this is beneficial to us as consumers, patents can sometimes backfire for sports companies. Back in 2016, Adidas sued Skechers for patent infringement. From the picture shown on the left you can see that the two shoes look very similar.

In summary, Adidas invested into 'spring blade' technology and later created a 'Springblade' shoe. With blades on the soles, it's purpose was to make a person feel like they had springs under their feet making them push off from the ground and run faster. Skechers also released a "Mega Flex" shoe with similar blade features on the sole.

The district judge working on the case had ruled that there was no infringement because Skechers had shown evidence that they started selling Mega Flex shoes a year before Adidas had filed the relevant Springblade patents. Adidas sought an injunction against Skechers but this was not granted as Adidas had not shown it faced irreparable harm without one. In addition, there was no evidence to show that the Skechers version of the shoe had damaged Adidas' reputation or sales.

If we put footwear to one side, can an actual sport be patented? In short, no. Whilst you have the common sports such as basketball and football, work has gone into creating new additions or variants to existing sports. For example, in the US, a patent was submitted to add an additional game piece to the board-game Chess. The additional piece was "the beast" and it's purpose was to block some pieces and allow other pieces to pass. The patent was eventually granted on the basis it was a "new and useful process". Currently, thousands of chess variants exist.

4. Design

Design rights protects the aesthetics and overall appearance of a product. This is inclusive of shape, colours, texture and materials used. Additionally, a design right can either be registered or unregistered. If your design is unregistered it means that your rights exists with no formal application. This usually lasts 15 years from the year the design was recorded. To have your design registered means to submit a formal application and add a layer of protection to your design. This then lasts for 25 years.

Sports examples:

sporting equipment
logos
mascots

Let’s take mascots for example. Say you were to design a mascot for a sports team. The design must be new and not a replica of a previous mascot. In the event someone copies your design it is best to get this registered. Once the application is filed it must show that the mascot is new, not offensive and cannot use protected symbols ie. the Royal crown or a religious symbol.

If we were to take this example further we could also mention the next Olympic Games which are due to take place in Tokyo in 2020. From a design perspective, Tokyo are not only currently working on their own mascots but also the appearance of their emblem, their team's apparel and the structure of their stadium.

What makes Design quite intriguing as an intellectual property right is that it has the tendency to overlap with the other rights mentioned above. If you take any of the sports examples above, you will notice that design is always incorporated. With major upcoming sports events such as the British Grand Prix and Tokyo 2020, it is important for design to be considered and understand the challenges that may come with similar designs.

Final thoughts

The landscape of sports is ever-changing. Without the realm of intellectual property it would be almost impossible to track the success and failures of an athlete, sport, product or idea. As technology and information continue to expand, it is exciting to see how sports clubs and companies are innovating. Whilst debates can often arise, there is no denying that the world of sports is really where intellectual property flourishes. From the player to the pitch, we are able to learn more about how professional relationships are created and how ideas come to life.

For more information on World IP Day or how IP delves into the sport industry, check out the following links below:

World IP Day 2019: “Reach for Gold: IP and Sports”

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