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Intellectual Property in the Arena

Author: Yingying Zhu, Partner at Beijing MINGDUN Law Firm

Email: zhu.yingying@mdlaw.cn

Date: August 18, 2021

 

Introduction

When we bid “farewell” to the Tokyo Olympic Games and look forward to the Beijing 2022 Winter Olympic Games, we are still amazed by the faster, stronger, and higher athletic spirits and moved by the demonstration of extremes of excellence and performance at the margins of human capability by all the athletes. It is also interesting to note that sport is an intellectual property (“IP”) heavy-loaded field, as it integrates several elements of creativity and innovation, many of which are protectable as IP in the forms of patent, trademark, copyright, industrial design and right of publicity.

Patent

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.[1]

By pushing the boundaries of technological advances, the patent system brings in better sporting equipment, more comfortable stadium and more intelligent Olympic village that benefit the athletes, the audience, the sports reporters and many others.

For example, due to the pandemic, the robots have been extensively used at the venues of the Tokyo Olympics to help minimize contact between people. New swimsuits are equipped with cutting-edge, patent-protected technology to provide comfort for the swimmers as well as reduce the drag of the water. Novel technology of broadcasting enables spectators from thousand miles away to view the Olympic games and ceremonies with enhanced audio-visual experience.

Abraham Lincoln once said: 'the patent system adds the fuel of interest to the fire of genius'. With the protection, rewards and incentive offered by the patent system, technology tycoons are working behind the scenes of the Olympics to bring viewers all over the globe the good feast of the world’s most spectacular sporting event.

Trademark

A trademark is a word, design, letter, numeral, shape, scheme of colors, sound or combination thereof that is capable of distinguishing the goods or services of a party from those of others. A trademark is usually two-dimensional, but it can also take the form of a 3D shape, if all the criteria for 3D trademark protection are met.

The Olympic symbol of five interlocking rings (the 'Olympic Rings'), the trademark held by International Olympic Committee (“IOC”), is one of the most recognizable and prestigious trademarks in the world. Protecting the Olympic symbol is the obligation of every host country of the Olympic Games. It is required by the Olympic Charter and also an important part of the bidding documents such as the Olympic Bid Report and the Host City Contract.

Apart from the Olympic Rings, the Olympic mascots, torch design, slogan, “Name of the Host City plus Year of the Olympic Games” are other symbols of the Olympics that are protectable under the Trademark Law and other more specific laws[2] dedicated to the protection of the Olympic symbols.

Trademark protection for the Olympic symbols makes it possible for the IOC and the host city to commercially exploit and merchandise the Olympic Games through partnership and licensing programs. Trademark protection could also help the IOC to prevent the unauthorized use and imitation of copycats which attempt to freeride the reputation and goodwill associated with the Olympic Games.

In the sporting arena, trademark also protects the identity and brands of the game sponsors. Sponsorship is widely recognized as an effective way to showcase the sponsor-brand owner’s financial strength and global reputation, and in turn it generates the income and revenues for the host city to invest in the sports events and sporting infrastructure.

Copyright and related rights

Copyright protects original works of authorship fixed in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more.[3]

Neighboring rights, also known as rights neighboring to copyright, were created for three categories of people/entities who are not actually authors: performing artists, producers of phonograms, and those involved in radio, digital and television broadcasting.[4]

In the sporting field, copyright and related rights offer protection against unauthorized retransmission and unlawful hyperlinking of live broadcasts of sporting events. Television, digital and media broadcasting organizations invest hugely in the exclusive right to broadcast the games live. The protection of copyright and related rights offered to the broadcasting organizations allow them to generate revenues from the broadcasting which in turn benefit the sporting fans and spectators from all around the globe, making the Olympic Games the most widely viewed sporting event in the world.

Industrial Design

An industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or color.[5]

In most countries, industrial designs need to fulfill the registration requirements in order to be protected as registered designs. In China and some other countries, industrial designs are protected as design patents under the patent law. [6]

In the sporting field, industrial designs protect the shape and look of the athletes’ gears and equipment. Industrial designers thrive on producing the fastest, strongest, coolest, and most comfortable sporting gears and equipment, such as shoes, outfits, gloves, helmets, spectacles, rackets, and so on, to help the athletes to achieve their personal best in the games.

Furthermore, the designs of the Olympic torch, Olympic cauldron, Olympic medals and even Olympic stadium are protectable by industrial designs.

No wonder people say that the Olympic Games is as much a celebration of design as it is of sport.[7] Thanks to the protection of industrial designs, viewers from all over the world would be able to see the finest designs of our age from watching the Olympic games.

Right of Publicity

The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indications of personal identity—such as nickname, voice, signature, likeness, or photograph—for commercial benefit.[8]

The right of publicity is defined differently and has different legal interpretations as to its scope of protection with regard to different jurisdictions. In the US, it is known as the right of publicity; in China and Europe, it is defined under the personality right; in the United Kingdom, it is known as image right.

In the sporting field, the right of publicity protects the rights of famous[9] athletes to commercialize and merchandise their names, images and likenesses. The protection of the right of publicity ensures that when their names, images or likenesses are displayed in newspapers, magazines, busses, trains, subways and social media for the advertising of the sponsors’ products or services, these athletes should be properly and adequately rewarded. It is because their names, images and likenesses would be able to generate huge commercial values for the sponsors due to the athletes’ accomplishments in sports.

With the help of the protection of right of publicity, those accomplished athletes are not only rewarded honorably but also financially for their demonstration of excellence. This certainly makes every drop of sweat count.

Conclusion

With Beijing ready to carry the 2022 Winter Olympic torch, fans around the world are awaiting with excitement another international sporting feast. It is important to raise the people’s awareness that IP rights are vested in almost every corner of the sporting arena and that IP protection plays a significant role in the sporting field. Respect of IP rights and robust IP protection will in turn lead to the growth and development of sports as well as the sporting business.


 Footnotes



[1] See https://www.wipo.int/patents/en/.

[2]  In China, these specific laws include, among others, the Regulation on the Protection of Olympic Symbols (2018 Revision) and Administrative Regulations for Special Symbols (1996).

[3] See https://www.copyright.gov/what-is-copyright/.

[4] See https://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/About_copyright_and_neighbouring_rights.

[5] See https://www.wipo.int/designs/en/faq_industrialdesigns.html.

[6] Ibid.

[7] See https://www.arup.com/perspectives/the-look-and-feel-of-great-sport.

[8] See https://www.inta.org/topics/right-of-publicity/.

[9] Even though the right of publicity is normally in connection with famous persons, each person, famous or not, has a right to prevent unauthorized exploitation of his or her name, image or likeness by others for commercial purposes.


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