A guide to rights protection at major sporting events: part 1 – identify, prioritise and pre-empt risk

In this three part guide, Nandan Kamath, Roshan Gopalakrishna and Nihal Zachariah deconstruct, analyse and exemplify of the seven distinct steps of rights protection programmes, which are put in place to protect the rights holders of today’s major sporting events.

In Part 1, the authors introduce the topic and look at the first two steps: identifying core rights, and contracting early with key parties.

Introducing rights protection at major sporting events

The commerce of sport has never been more alive. International sporting events such as the FIFA World Cup, the Olympic Games, the ICC Cricket World Cup and the Rugby World Cup captivate large global audiences, and entice high profile sponsorships and partnerships.

While major sporting events offer unparalleled platforms for companies and brands to gain global visibility, it is quite common to witness a number of companies and brands actively seeking to associate with the goodwill of such events without securing any official sponsorship or commercial association rights, i.e., through the means of what is often called ‘ambush’ or ‘guerilla’ marketing.

Most approaches to maintaining the integrity of sponsor investments involve the implementation of rights protection programmes (“RPP”).

What is a rights protection programme?

Simply stated, an RPP is a systematic plan of action to protect the investment of and the exclusive rights granted to the sponsors, partners and licensees of an event.

In this context, the RPP is designed to address amongst others, broadcast and proprietary content piracy, commercial abuse of an event’s intellectual property, and agile ambush marketing campaigns, on online, offline as well as on-ground platforms.

In practice, a well formulated RPP relies on the implementation of pre-emptive practical steps (registration of marks, public education, advance communications to sponsor competitors, brand and content guidelines), careful contractual drafting (host agreements, team participation agreements, ticket terms), pro-active intellectual property protection (monitoring counterfeit merchandise and digital platforms, live stream protection) and active collaboration with authorities within the host nation.

While an effective RPP has become essential for the successful conduct of a global sporting event, RPPs can potentially end up being overly restrictive and seriously impact the public’s ability to interact with and enjoy the event freely. If a major sporting event is to achieve all the positive outcomes that it aims for, the RPP must be thoughtful, balanced and responsibly managed.

A seven step guide to RPP

This step-by-step guide offers a practitioner’s perspective on executing an RPP for a major sporting event. In doing so, we draw on experience in advising various governing bodies hosting both domestic and international sporting events in the Indian sub-continent.

Step 1 – Identify and prioritise core rights over collateral rights

As a first step, it is essential for an event owner to clearly identify and prioritise the core properties that it cares about the most. These are to be distinguished from the collateral properties and rights that might not be as central to the commercial proposition of the event.

Many event owners begin with the approach that anything of commercial value is worth protecting, that any and every leakage should be considered a violation. Looking back and looking forward, it is easy to see how this expansive view may have some merit – we have a rapidly changing technology landscape (who could have imagined 10 years ago that there would be something called an official mobile app?) and the continually evolving sports business model (maybe the next big thing is a premium ticket to “take a selfie with your favourite star ” at the game?).

Focus on core rights

However, the risk of this approach is that it can lead to a lack of focus in the RPP structure, monitoring and enforcement, especially when working with limited budgets. It is, therefore, essential to first identify and then prioritise the core business proposition that makes the event “work ”.

As a simple example, the use of event marks (logos, word marks, trademarks), participating player images, match tickets and audio-visual content are all extremely valuable and core inventory at the event. These properties are the tools used to demonstrate official association by sponsors and partners and broadcasters. If it were possible for these to be used without license or accountability by third parties, the current business model of the sporting event would be significantly compromised.

This is why RPP’s in current times inevitably protect against unlicensed use of the event marks and player images, counterfeit merchandising, black-marketing of tickets, online and broadcast piracy, and similar uses of the core rights.

Can certain violations be disregarded or taken advantage of?

Concurrently, there may be other acts and uses that are commercial in nature and could theoretically be considered to be violations. However, these might, after all, not be worth pursuing for a variety of reasons. Enforcement may be expensive, somewhat remote from the business proposition that makes the event work, might seriously impinge fan interaction and enjoyment and, importantly, may not be in the best interests of the event itself.

In fact, there may be some things the event owner may positively wish to encourage rather than discourage. What these are will vary depending on the nature of the event, the specific sporting discipline and the host territory.

For example, it may be to the event’s benefit to build publicity and fan engagement for the event by facilitating access to journalists and photographers into the stadium, permitting and encouraging fans to capture videos and images in tournament venues and posting them to social media sites, allowing free distribution of match schedules in the host city and other similar activities.

There will be other areas, such as the dissemination of live scores via mobile, off-tube live commentary and others that could fall into either bucket, after subjecting them to sensible criteria to determine whether they are indeed core or collateral.