For most people, sport is about keeping fit, supporting your local team or appreciating the achievements of highly skilled athletes. But increasingly sport is also a big business. In 2021, the industry earned some $355 billion in revenues globally, and this figure is predicted to increase to $700 billion by 2026.
Much of this growth is driven by innovation, investment and commercial partnerships, all of which depend on intellectual property – from the technology and innovative designs that improve performance and safety, to the brands that facilitate merchandising and sponsorship and the broadcasting and gaming rights that take sports events into people’s homes and even into the virtual world.
Securing IP protection is therefore a foundation of sporting success, both on the field of play and in the marketplace. As in other industries such as music and films, effective merchandising and co-branding is increasingly important to raise both profile and revenues, which means that having registered trade marks and other IP rights is critical.
IP in the Tour de France
A good example of the power of IP is the Tour de France – which many readers no doubt follow during July each year. Innovation constantly leads to changes to the bicycle frames, saddles and bikes and is also evident in the clothing, nutrition, health monitoring and timekeeping. Recent inventions in professional cycles include wireless connections between the gear shifters and derailleurs (removing the need for cables) and tubeless tyres.
Many of these inventions are likely to be patentable, but design rights can also be important in protecting new designs of bike parts, helmets and other equipment. Indeed, a February 2023 judgment of the EU Court of Justice concerned the validity of a design for a bicycle saddle owned by German cycling products company Monz. In this case, the Court ruled that the ‘visibility’ requirement for component parts of complex products must be assessed in the light of the ‘normal use’ of that complex product.
The Tour de France is a very valuable brand (owned by Amaury Sport Organisation or AMO) itself and there are EUTM registrations for LE TOUR DE FRANCE and TOUR DE FRANCE , as well as for key brand assets such as MAILLOT JAUNE (the famous yellow jersey owned by the Tour’s classification leader). Cycling brands too take steps to protect their IP rights, warning consumers about the risks of counterfeits and advising on how to identify them.
Innovation in motion
Cycling is just one example of how innovation is transforming sports. The sports technology industry is expected to be worth $40.2 billion by 2026. Patents and other forms of IP protection are key to protecting innovative features in products as diverse as running shoes (for example, Nike’s Vaporfly) and Formula 1 cars to health and fitness monitoring equipment such as smart gumshields, technologies for decision making (such as VAR in football and Hawk-eye in tennis) and tools that improve data analysis and viewer experience (including virtual reality and augmented reality).
One of the benefits of IP rights is the opportunity they provide for licensing, and this can be important in generating extra revenue in sport and driving technological advances in unrelated areas. For example, innovation developed in Formula 1 has helped to enhance fuel efficiency in buses and even been used to improve analytics and modelling for pharmaceutical R&D.
Marketing and sponsorship
With the growth of sport as a business, and its worldwide penetration, branding has taken on a new importance. Successful sports players and teams register trade marks for their names, likenesses and logos, which can then be licensed on clothing and many other types of merchandise. Successful athletes are also valuable property that sponsors want to be associated with.
Sponsorship rights can be worth millions of euros for major sports teams and events, which is why organisations such as the Olympics and FIFA take attempts by brands that are not official sponsors to be associated with events – known as ambush marketing – so seriously. These attempts can include adverts or branding in or near stadiums, marketing campaigns or media advertising. The Tour de France has more than 40 partners and official suppliers s and all of the 22 teams taking part also display their own sponsors’ branding on the riders’ kit.
Footballer Lionel Messi illustrates well the importance of trade mark protection for individual sports stars. In 2009, he sought to register his name and logo as an EUTM but faced an opposition based on the earlier EU trade mark MASSI, a cycling brand. In its judgment in 2020, the EU Court of Justice ruled in favour of Messi, saying that the footballer’s reputation was a relevant factor in the analysis, and that the General Court was entitled to find that this reputation was a well-known fact in Europe, which did not need to be demonstrated. Messi’s name and logo form the basis of his many merchandising ventures, including his own clothing brand.
Sports stars may also be able to take advantage of figurative and other types of trade marks to protect characteristics associated with them. For example, the footballer Kylian Mbappé owns an EU trade mark for his distinctive crossed-arms goal celebration and the former sprinter Usain Bolt owned an EU trade mark for his well-known lightning-bolt victory pose.
Women’s sports joining the IP game
With the FIFA Women’s World Cup that took place in Australia and New Zealand during July and August 2023, the profile of women’s sport has increased.
While there are design registrations for the Women’s World Cup kits and boots and for the ball itself, and trade mark registrations for the logo, mascot, trophy and competition name as well as team names and nicknames, it is striking that none of the players that took part in the tournament owns an EU trade mark or registered Community design for their name or personal brand. By contrast, 36 of the male players who participated in the last World Cup own at least one EU trade mark.
PricewaterhouseCoopers recently reported that 71% of experts from 43 countries expect women’s sports revenues to increase by more than 15% in the next three to five years. As these revenues grow, IP protection will become more important to secure sponsorship and merchandising opportunities. The opportunities in women’s sport are only just beginning.
The next frontier: new challenges from virtual sports and the metaverse
The potential for sports business continues to expand, particularly with the popularity of e-sports and gaming. In 2020, during the COVID-19 pandemic, AMO and virtual training app Zwift organised the Virtual Tour de France and there will likely be many more sporting opportunities in the metaverse.
This may force sports stars, organisers and sponsors to consider how to protect their IP rights in these new environments. Already, last year, the Italian football club Juventus obtained a preliminary injunction against Blockeras in a case of trade mark infringement over the marketing and minting of non-fungible tokens (NFTs) of trading cards that included the club’s name and logo.
Just like athletes, IP professionals will need to be fit, prepared and inspired to meet these new challenges.