International sport and the need to protect your intellectual property

 

International sport and the need to protect your intellectual property

International sport is a great way for countries and brands to come together and collaborate and reach new-found markets; however, it also raises the chances of intellectual property matters being brought to light as your trademarks and designs now reach larger audiences. It is essential to make sure that before participating in advertising across international sporting matches, you are also ensuring that your intellectual property is as secure as possible.

Under section 120(1) of the Trade Marks Act 1995 (Cth):

"A person infringes a registered trademark if the person uses as a trademark a sign that is substantially identical with, or deceptively similar to, the trademark about goods or services in respect of which the trademark is registered."

Section 17 states:

A trademark is a sign intended to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services sold with or provided by any other person.

On the one hand, you could argue that when a trademark is used for advertising a business at a major sporting venue to over 82,000 spectators, it will constitute the use of that trademark. On the other hand, it could also be argued that the Indian business isn't trading in Australia and that the 'use' in Australia is merely incidental to the dominant use, being advertising to the millions of Indian public viewing the match via the television broadcast into India. You could also argue that there was no 'use' at all, given that the product isn't targeted at the Australian public.

This type of cross-country advertising is not a new phenomenon and certainly not in international sports arenas. I remember watching Ashes test matches from England on TV years ago, with the Australian Ford Falcon prominently advertised at the grounds. The Falcon was not offered for sale in the UK, and the advertising was only aimed at Australian viewers.

The Coca-Cola Corporation is one international brand that has relied on international sporting events for years as a vehicle for its advertising. At the 2010 FIFA World Cup in South Africa, Coca-Cola workers were dressed in red and white outfits, distributing products to fans in the stands. This type of marketing is often referred to as ambush marketing. It is a way for companies to associate their brands with a major sporting event without paying the often high costs of being an official sponsor. ambush marketing can take

many forms, such as product placement, point-of-sale promotions, street teams, internet marketing and event-specific packaging.

In the past, Coca-Cola has been accused of ambush marketing, most notably at the 1996 Summer Olympics in Atlanta, when the company distributed miniature American flags to spectators to associate its brand with patriotism and national pride.

With the increased globalisation of sports and the ever-growing popularity of international sporting events,

companies are increasingly looking for ways to maximise their exposure and increase their market share. As a result, we will likely see more examples of ambush marketing in the future.

For brand owners, it is essential to be aware of the risks of ambush marketing and to take steps to protect your brand. If you are planning to use ambush marketing to promote your brand at a major sporting event, you should seek legal advice to ensure that your activities do not infringe on other companies' intellectual property.

Rights, mainly trade mark rights.