Friday, 27 March 2009

IPL move to RSA - IPright

In under a month the Indian Premier League (IPL) will be hosted in South Africa. IPL organisers moved the tournament from India to South Africa when the Indian government refused to sanction the match schedule because it clashed with federal elections causing security concerns. In just three weeks IMG (the sports marketing giant responsible for organising the tournament) will have the huge task of organising and selling 59 IPL games across eight SA cities.

Some of the reasons for moving the tournament to RSA (as opposed to other cricketing nations) are set out in this Guardian article . SA's ability to effectively protect the IP rights around the tournament is not cited as a reason for moving the tournament to South Africa but one feels that the absence of major discussion around this point is tacit acknowledgement of the confidence sponsors and organisers have in the IP regime in RSA. And there are good reasons why it has not been a reported discussion point (though it must be said that the High Court's delay in delivering the interim relief decision in the Servier case, now due today, is not one of them).

Right: The Rajasthan Royals celebrating RSA's IP rights regime

Despite the fact that not a single team is registered as a trade mark at the national office and only two main players have their names protected as trade marks (Gibbs and Kallis), there are a host of tools available to the rights holders. Take for instance, S15A of the Merchandise Marks Act under which IMG, as event organiser, could make representations to the Minister of Trade and Industry, to persuade him to authorise the forthcoming event as a protected event. Protection for "protected events" is extensive - no person may use a trade mark in relation to such an event in a manner which is calculated to achieve publicity for that trade mark and thereby derive promotional benefit from the event, without prior authority of the organiser of such event. S15A protects sponsors against ambush marketing.

An ‘event’ is defined ‘any exhibition, show or competition of a sporting, recreational or entertainment nature which is (a) held or to be held in public; (b) likely to attract the attention of the public or to be newsworthy; and (c) financed or subsidised by commercial sponsorship, and includes any broadcast of such exhibition, show or competition’.

In addition, as RSA is a member of the Berne Convention for the protection of copyright it recognises and protects international copyright. This may be a particularly useful tool as most of the names used by teams have logo elements regarded as artistic works and likely to attract copyright automatically. An unlicensed trader selling say T-shirts bearing the logos is likely to infringe to the copyright and be guilty of an offence entitling rights holders to conduct police raids to confiscate goods, and the State to fine perpetrators. Furthermore customs can be notified to police all borders for counterfeit goods bearing infringing logos. There are also constitutional rights that may protect the personality rights of individauls.

S15A of the Merchandise Marks Act, increased penalties under the Copyright Act and the existence of the Counterfeit Goods Act are all developments to toughen RSA's IP regime in the last 10-15 years, and are a good IP foundation for hosting tournaments such as IPL, Fifa's Football World Cup and IRB Rugby World Cup.

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