Mega-Events and Intellectual Property Protection

‍

Mega-events represent the grand spectacles of modern society. We are likely to see more of them, both in their "official" and "alternative" forms, as global society adopts standardized and institutionalized characteristics. While the most common examples are major sporting events like the Olympic Games, Paralympic Games, and the World Cup, other contexts such as music concerts and fashion shows also fit this category.

In this context, industrial property plays a crucial role in protecting rights and facilitating large events. Organizations and mega-event committees impose strict marketing restrictions to safeguard their intellectual properties and ensure exclusive use by official sponsors and partners.

This article aims to analyze the protection of intellectual property in mega-events. First, it will address trademark protection, particularly for events with specific and temporary protection. Second, it will cover issues and protection related to patents in mega-events, considering the limits of organizers' and sponsors' responsibilities regarding potential patent infringements.

Regulation on Industrial Property in Mega-Events

The importance of protecting IP rights in large-scale events is evident in the legislation and policies adopted to prevent violations. For example, in the context of the World Cup, Qatar enacted FIFA IP Law No. 11 in 2021, reinforcing the recognition and protection of FIFA's IP rights.

Similarly, the International Olympic Committee (IOC) imposes various marketing restrictions to protect the brands and properties of the Paris 2024 Olympic and Paralympic Games, as well as Law No. 2028-202/2018 in France. The "Olympic" and "Paralympic" properties include symbols, flags, slogans, anthems, emblems, torches, and any audiovisual creations related to the Games, which are exclusively owned by the IOC and the International Paralympic Committee (IPC). The use of these properties for commercial purposes is restricted to official sponsors, who have exclusive rights to use these elements in their advertising campaigns.

Protection of these rights is ensured by patents, trademark laws, copyright laws, and design laws, prohibiting unauthorized use of these properties. Consequently, trademark infringements are divided into two main categories: counterfeiting and unfair competition.

Additionally, Brazil is a signatory to international treaties for IP protection, such as the Paris Convention (PC) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which require the creation of precautionary measures to protect rights in situations of risk of irreparable harm or destruction of evidence.

Unfair competition and parasitism, which involve the improper use of the prestige of the Games without being an official partner, are also prohibited and may result in sanctions. In this context, the Pelé Law (Law No. 9,615/98) ensures the exclusive use of sports entities' symbols, providing legal protection without the need for registration, such as unauthorized use of Olympic symbols, anthems, or slogans, while the Olympic Act (Law No. 12,035/09) protects expressions and symbols related to the 2016 Olympic Games, prohibiting unauthorized use to avoid improper association with the events.

However, such protection is not absolute, as Article 2 of the treaty in question establishes the limits of the obligations assumed by the signatory states, including the use of Olympic symbols in mass media for journalistic information purposes.

Regarding the protection of Olympic symbols and mascots, the Copyright Law (Law No. 9,610/98) is noteworthy, as it grants the copyright holder the exclusive right to use, enjoy, and dispose of the work. Thus, legal protection is provided to works not covered by the Nairobi Treaty, Pelé Law, and Industrial Property Law, such as mascots and other symbols not traditionally used in all Olympics, like medals and Olympic rings.

Moreover, technological patents in sports are commonly seen in the context of major sporting events, which can be attributed to factors such as investment in research, competitiveness, financial resources, visibility, economic returns, and collaboration with research institutions. Additionally, there is an expanded use of new technologies for enhancing sports. Systems like "VAR" (Video Assistant Referee) or "goal-line technology" have become crucial for reviewing blurred actions on the field or detecting if a goal has been scored.

The Misuse of Industrial Property in Major Events: Examples and enforcement Measures

Counterfeiting occurs when trademarks, symbols, or elements related to events are reproduced without authorization. Notable cases include the seizure of 1,500 counterfeit 'Jabulani' footballs in Brazil in 2013. Brazil has regulations to combat IP violations, particularly in sports events. The Industrial Property Law allows for the protection of figures, symbols, or creative elements, even if not registered as a trademark, through the repression of unfair competition, which is also considered a crime. The characterization of the crime of unfair competition does not depend on the reproduction or imitation of a registered trademark but rather on the risk of fraudulent diversion of customers.

Ambush marketing, which attempts to associate with the Games without authorization, is expressly prohibited by the Sports Code and the Intellectual Property Code. Referring to the aforementioned laws (9.279/96, 9.615/98, and 12.035/09), it is important to note that the scope of protection provided by these legal diplomas is restricted to a specific type of ambush marketing: unauthorized use.

Nevertheless, ambush marketing can occur through other methods. Brazil lacks solid rules regulating this practice, with the legality of third-party practices being defined on a case-by-case basis. For example, issues concerning association marketing and TV commercials are notable. It is emphasized that the revenue from negotiating broadcasting rights for the Olympic Games is the most important source of income for the event organizers. Television channels pay thousands of dollars for broadcasting rights and aim for a financial return greater than the investment, with the sale of advertising space during the Games. Although not unlawful, the purchase of advertising space during competitions by a non-official sponsor may create a mental association between the advertiser and the Games.

The origin of ambush marketing was first observed at the 1984 Olympics. Fujifilm was an official sponsor, but Kodak used TV commercials by sponsoring television stations covering the event and the American track team. However, the term "ambush marketing" was coined in the early 1990s by Jerry Welsh, president of Welsh Marketing Associates, with a positive connotation referring to healthy competition. For instance, at the Lillehammer Winter Games in Norway in 1994, VISA was one of the official sponsors, while rival AMERICAN EXPRESS launched an advertising campaign with the slogan: "If you are traveling to Lillehammer, you will need a passport, but you don't need a visa."

There are various types of ambush marketing, including direct and indirect ambush marketing. For example, predatory ambush marketing deliberately targets the activities of official sponsors to confuse consumers about who is the official sponsor. An example was Coca-Cola's unexpected appearance at the 1997 Pepsi Asia Cup, leveraging Pepsi's television sponsorship rights. On the other hand, "coat-tail" ambush marketing tries to associate with the event by exploiting unsolicited connections, even without being an official sponsor. An example is Nike, which sponsors most women's soccer teams, while Adidas is the World Cup sponsor.

Although more common in sports events, ambush marketing is not limited to them. For instance, during the Rio de Janeiro pre-Carnival in 2023, seven fines were imposed on companies like Amstel, Enauta, IFood, Spaceman, and Esportes da Sorte. Among the violations, agents identified activations, distribution of giveaways, and product sales.

In an unprecedented initiative promoted by the city of Rio de Janeiro, with sponsorship from Banco Itaú, singer Madonna delivered a historic performance on Copacabana Beach, drawing a crowd of approximately 1.6 million people. The event generated media exposure valued at around 1.4 billion reais for the brands involved. Now, it is multi-artist Lady Gaga’s turn to take the stage on the sands of Copacabana. Driven by the economic impact observed the previous year, numerous non-sponsoring brands have been adopting opportunistic strategies: they are leveraging symbols and distinctive elements of the singer’s career to associate themselves with the mega-event, even if only indirectly. Expectations are that interest in the event will rise by more than 40% compared to last year, a surge amplified by the fierce competition within search algorithms and the parasitic attempts to capitalize on the prestige of the occasion.

Thus, ambush marketing is a specific example of unfair competition. In this practice, non-sponsoring brands attempt to benefit from the event's exposure without any official contribution, using tactics that include creating advertising campaigns that refer to the event's visual elements.

Conclusion

The protection of intellectual property in mega-events is of paramount importance, as these events often represent the pinnacle of global entertainment and cultural significance. From major sporting events like the Olympics and World Cup to large-scale music concerts and fashion shows, IP rights ensure that the contributions of sponsors, organizers, and creators are safeguarded against unauthorized exploitation.

Effective IP protection is critical in maintaining the exclusivity and integrity of mega-events. These protections help prevent counterfeiting and unfair competition, thereby preserving the financial and reputational interests of all parties involved. In other hand, patents play a crucial role in the technological aspects of mega-events, from innovative sports equipment to specialized event-related devices.

In summary, robust IP protection frameworks are essential for the successful management and execution of mega-events. By ensuring that IP rights are respected and enforced, stakeholders can protect their investments, foster innovation, and uphold the overall integrity and success of these grand global spectacles.

‍