IN the past decade, effective rights protection programmes (“RPPs”) have become a major concern of sports administrators throughout the globe. Driven by a growing recognition of the importance of broadcasters and sponsors to sports funding models, RPPs in sport have expanded greatly in scale and scope. The traditional concern with rip-off merchandise (once the heart of RPPs) remains, however the Internet, agile marketing campaigns and the rapid rise of new media have irrevocably changed the landscape in which large format sports events occur.
These new challenges and the expanding remit of RPPs are well illustrated by the programme designed by the International Cricket Council (“ICC”) for the ICC Cricket World Cup 2011(“ICC CWC 2011”). As part of its RPP, the ICC has engaged Copyright Integrity International (CII), one of the world’s leading sports rights protection agencies, to provide a broad suite of initiatives. This article provides an overview of some of the measures put in place to secure and protect rights arising out of the event.
The ICC’s primary objective is to put a stop to the systematic, commercial abuse of broadcast rights, event marks and other intellectual property on a wide scale in order to safeguard the exclusivity rights of its partners. The notion of exclusivity crucially underpins the funding model of large format sport. In essence, it is exclusivity that drives the value of broadcast deals, sponsorship contracts and the value of merchandising arrangements. This value derives from the capacity to exclude others from offering similar products and making similar commercial claims to sports events. In the case of the ICC, should this exclusivity be eroded, the value of its commercial rights would decrease, resulting in less revenue for its Members and their grassroot development programmes. Broadcasters and sponsors around the globe are increasingly insisting on clear obligations for sports rights owners to take reasonable steps to prevent ambush marketing activity backed by a contractual indemnity or even liquidated damages regime. If left unchecked, there are a number of very real threats to the effective capitalization of the commercial potential of the ICC CWC 2011.
The ICC Cricket World Cup 2011
The ICC CWC 2011 is the peak international competition in cricket. The 2011 rendition represents the tenth running of the event and will comprise three host nations, 13 venues, 14 participating teams, 49 One-Day International (“ODI”) matches and approximately 343 hours of live cricket. It is estimated that an international audience of in excess of two billion viewers will tune into the event, making it the world’s third largest and most viewed sporting event, behind only soccer’s World Cup and the Summer Olympic Games.
The ICC has, in recent years, developed a comprehensive global rights protection programme involving pre-emptive practical steps, careful contractual drafting, and proactive intellectual property protection. It has assembled a large team to give effect to the RPP in each of the host nations and has appointed CII to assist in the implementation of the programme. At the same time, the ICC has been implementing its rights protection programme in close collaboration with various authorities within the host nation and elsewhere including ground officials, police forces, anti-counterfeit agencies, specialist law firms and public prosecutors.
Public Education
The steps taken to prevent rights infringements began months before the tournament. The design of the programme importantly has public education as a focal point. These initiatives are designed to ensure that both consumers and companies engaged in sport marketing understand the differences between official sponsors and ambush marketers, as well as the legal rights of the event organizer and the bounds of permissible unlicensed commercial interactions with the event.
Consistent with accepted commercial practice and established common law in India, press releases, cautionary notices and advertisements have been used extensively to enhance awareness and protect key trademarks. Cautionary Notices (see right) give notice to third parties that the marks referenced are the trademark of another and caution third parties against unauthorized use lest they be charged with infringement. These notices have been published in a range of leading newspapers in India, Sri Lanka and Bangladesh in English and local languages.
Comprehensive brand guidelines provide guidance on appropriate and acceptable commercial and non-commercial utilisation by third parties of the proprietary names, proprietary marks and mascot and audio-visual representations of ICC-Cricket World Cup match play as well as the official song in all media relating to the ICC CWC 2011.
These guidelines and notice regimes have been supplemented by a wide-ranging communications campaign. Many hundreds of letters have been sent to key broadcast platforms, sponsor competitors and other important stakeholders. These communications are primarily designed to clarify the permissible and impermissible use of proprietary ICC content and ICC trademarks and service marks by unassociated third parties, and form part of a larger education campaign. This campaign is intended to secure the support of sponsor competitors in the lead up to and during the event by disseminating useful information, encouraging third parties to respect the exclusive rights of official ICC partners in their commercial and marketing activities. An extract reflecting this tone is featured below:
“As you are likely aware, in order to stage an event of such scale, the ICC raises funds from its commercial partners and licensees and in turn grants them exclusivity of association with the ICC and the event and exclusivity of usage of ICC logos, trade marks, word marks and match content such as images, footage, proprietary data etc. Without the guarantee of such exclusivity, the ICC’s partners will not be prepared to sponsor such events, and as a consequence, the ICC will not be able to stage them. In this instance, the ICC is the owner of all logos, trade marks, word marks and match content in relation to the ICC Cricket World Cup 2011.”
Ambush Marketing and Brand Protection
In broad terms, ambush marketing refers to a wide range of marketing activities by which a business seeks to associate its name, logos, products or services with an event for which it is not a sponsor. It covers both premeditated attempts to confuse the public regarding a company’s association with an event as well as less deliberate activities that capture, or leverage off, the goodwill surrounding an event, by suggesting some involvement or association. The ICC has been careful not to introduce Draconian, overly restrictive measures so as to carefully balance the rights of sponsors on one hand and freedom of speech and cultural rights on the other.
The ICC and CII have implemented a multi-pronged approach to deal with ambush marketing campaigns. This commenced with the public education initiatives and communication campaigns outlined above, but also finds expression in the design of ticketing terms, imposition of clean stadia zones, the recruitment of in-stadium spotters, the implementation of guidelines on appropriate commercial use of participating players in marketing campaigns during the event and wide-ranging internet and real world logo monitoring.
This approach prohibits heavily branded commercial messages in stadia and elsewhere. Because of the importance of sponsorship to event success, many international sporting events such as the Olympics and the Masters Golf have begun to confiscate unlicensed branded items such items at entry points. The ICC believes a comparable approach is justified to combat ambush marketing attempts and ticket conditions have been drafted that restrict what consumers may wear and carry when entering the event venue (i.e., prohibiting t-shirts, banners, etc. that promote an ambusher). However, the ICC and CII will be employing a common sense approach as successfully deployed at Wimbledon.
Ticketing terms also prevent consumers from transferring tickets and using tickets as prizes in promotions. The use of tickets in unauthorised corporate hospitality or tour and travel programmes is also prohibited.
The ICC has long been a fore-runner in imposing clean zones as a strategy for sponsorship programme protection. The clean zone is meant to address unauthorized commercial activity on public property, unauthorized activity targeted to the general public promoting a brand or service that extends into or is visible from public right-of-ways, regardless of its place of origin (public or private) and outdoor temporary signage, décor and activity promoting a brand, product or service on private property in areas of high traffic because of the ICC CWC 2011. The ICC and CII have co-ordinated a large team of spotters across India, Sri Lanka and Bangladesh who will be responsible for the execution of monitoring this within the precincts and in the vicinity of match stadia.
The ICC and CII has been closely monitoring the use of official ICC trade marks and event marks and have already resolved dozens of cases. Importantly, this includes both the online and offline environment. Many sports marketers are using the same strategies and tools to protect their brands and intellectual property that they were using when knock-off merchandise was the only threat. But as the sports industry grows globally, and as fan bases go digital, brands must also adjust to the new online challenges. Off line, the ICC, CII and its associates will be employing the technique of “mystery shopping” whereby brand protection agents made random, unannounced visits to area retail shops.
Online Piracy
In the online domain, CII has observed over recent years a significant increase in deliberate online commercial piracy of cricket audio-visual content in recent years. These pirates are well organised and funded and are prepared to resort to underhanded methods to evade or deter efforts to stop such piracy. The face of piracy and ambush marketing is constantly evolving and CII has identified a range of unauthorised uses of trademarks, logos, mobile and broadcast rights in cricket.
In the lead up to the tournament, key streaming service providers will be sent Advance Notices of Potential Infringement, pursuant to §411(b) of Title 17 of the United States Code. This form of notice is increasingly being used by rights owners as it initiates an action for copyright infringement before the first live transmission of the event.
During the tournament, a large dedicated team of lawyers and forensic web analysts will be involved in the identification and prosecution of online broadcast and trade mark piracy.
Television, print and outdoor
The ICC is also aware of the risks posed by commercialisation of footage, images and marks in various media, including television, newspapers, magazines and outdoor hoardings. It has appointed specialist agencies to monitor and police the over-use of match footage by news andother broadcasters beyond the News Access Regulations, the unlicensed commercialisation of proprietary marks and other content on television shows (which poses ambush marketing risks to official sponsors and partners), the commercialisation through branded supplements and sections of newspapers and magazines as well as other above-the-line campaigns such as hoardings, banners,building dressing, etc.
Mobile Rights
Another area in which the ICC has granted exclusive rights is mobile rights and the use of ICC trade marks and ICC proprietary content in mobile environments. In the dynamic world of mobile and new media, it is important that infringements of these rights are monitored and policed on a real time basis. Towards this end, the ICC and CII will be policing the various mobile application stores such as iTunes, the OVI and Android application stores and proactively monitoring various mobile services to ensure that ICC trade marks are not used and ICC proprietary content is not sold and disseminated.
Conclusion
The tide of rights infringements in sport across the globe continues to gather momentumas the inherent value in cricket stars, teams and brands becomes more conspicuous. This tide has many rips and dynamics, from the glaringly obvious to the ambiguous and subtle, but they can also overlap and reinforce each other. If they start to run together, the lure of the goodwill generated by sports events may ultimately undermine the official sponsorship rights that effectively underwrite large format sport. Accordingly, it is not crucial that sports owners become more proactive in their defence against ambushing and acknowledge the importance of preventative measures, anticipating potential opportunities for ambushers and taking the necessary steps to block such attempts.
