A guide to rights protection at major sporting events: part 2 – educate, monitor and enforce

In Part 1 of this three part guide, Nandan Kamath, Roshan Gopalakrishna and Nihal Zachariah introduced rights protection programmes and looked at the first two steps: identifying core rights, and contracting early with key parties.

In Part 2, the authors look at steps 3 to 5: educating the public, actively monitoring for breaches, and developing intelligent enforcement strategies.

Step 3 – Effectively educate the public

It is precipitous to presume that members of the public will be aware of the rights-structure of the event or, for that matter, even familiar with intellectual property rights.

Intellectual property laws may not always reflect local practices and morality in the host country and if an ambush marketing law is introduced that adds additional variables (such as laws taking certain word combinations out of commercial circulation) this will be even more unfamiliar and confusing.

In this respect, it will be interesting to see how FIFA will approach the issue of “Natal 2014 ”, a term reportedly trademarked by FIFA under the Brazilian World Cup law that remains in force till the end of 2014.¹ While Natal was one of the FIFA World Cup host cities, it is also the Portuguese word for ‘Christmas’, and may quite possibly be the subject of cultural and commercial references towards the festive season.

A comprehensive programme to communicate properties in which rights reside

An effective RPP will clearly delineate and communicate to the public, especially the commercial community, the properties in which the event organiser seeks to enforce its rights and the legal provisions that back the event owner’s claims.

These messages can be communicated by undertaking a comprehensive public education and advance notification campaign. Such programmes may primarily target the host territories. However, with increasing globalisation of rights activations, these are equally useful when properly directed at entities and persons across the globe.

Public education campaigns are based on an understanding that many purported ‘infringements’ are often unintentional (even if not harmless) instances of overzealous behaviour rather than malicious attempts to devalue rights.

Public education measures can be supplemented by a targeted communications well in advance of the tournament. These are sent to direct competitors of official sponsors, to news broadcasters, broadcast platforms and other important stakeholders, as well as known past infringers of sports rights (e.g., websites streaming and hosting illegal match content).

Culture respect and support for rights

This campaign should seek to foster an environment of respect and support amongst third parties for the exclusive rights of the event organiser’s official sponsors and partners, while at the same time notifying such entities of the rules and regulations surrounding the event and the legal implications of infringement.

For example, FIFA issued an open advance information letter on marketing activities requesting commercial entities to respect the rights of FIFA and its commercial partners and avoid “any promotional activity which takes undue advantage of the commercial goodwill ” of events such as the FIFA World Cup.² In addition, the information letter listed the marks and word marks that FIFA’s partners have the exclusive right to use, and provided that any unauthorised use of the marks “may constitute actionable trademark infringement and/or unjust enrichment and/or passing off/unfair competition and/or a breach of laws ” protecting the tournaments.³

To supplement these, press releases, cautionary notices in newspapers and magazines (in English and local languages) and informative advertisements in the months leading up to the event can enhance public awareness and protect essential intellectual properties. The publication (through online and other means) of easily understandable and well illustrated responses to frequently asked questions on brand and content protection also make the do’s and don’t’s of brand protection accessible.

The ICC’s brand and content protection guidelines elucidate that while the use of general cricket terms and imagery in advertisements and promotions may be permissible, any unlicensed usage in such advertisements and promotions of the ICC’s and event-related intellectual property would be impermissible.⁴

The supplementary advantage of a well directed public education and advance notice programme is that it strengthens the event owner’s case if it wishes to prove knowing breach of rights in certain cases. From the public’s point of view, an environment of compliance is being created and surprises are not being sprung on unsuspecting fans on match day when their primary focus is on enjoying their experience.

Step 4 – Monitor actively and smartly for potential breaches

Comprehensive online, off-line and on-ground monitoring and enforcement helps secure the exclusivities that have been delineated. There are numerous different platforms available to potential infringers, and it is advisable that the monitoring of potential infringements starts well before the commencement of the event.

With a ear to the ground, the event owner can predict areas of risk and focus its efforts. Early monitoring acts as a watchdog. For example, at this stage, one must look out for unauthorised ticket sales, unlicensed travel and hospitality packages, marketing build ups and other promotions that use event properties. It is likely some of the infringers are just getting started and looking to see if anyone is watching.

On-line and on-the-ground

Monitoring online platforms, including social and other digital media, acts as an excellent proxy. Today, promotions inevitably have digital components given the ubiquity and low cost of the medium. Digital media also make searching and finding easier, given the availability of advanced multimedia search technologies.