Intellectual Property VS. Football: Mapping out the Intersection
Seven years ago, a classmate went home with a badly torn shirt because he called me the son of a goat. Fast forward to 2020, everyone is struggling to outclass contemporaries, to be called GOATS. Did I hear you say irony? Indeed! The debate on who’s who among footballers is way amusing. Today, I descend into the arena, with my Greatest of All Time. His name is… Ronaldo.
Ronaldo de Assis Moreira! Sorry to burst your bubbles if that sounded strange. You could refer to him as Ronaldinho Gaucho, for convenience purposes. Ronaldinho is famous for having won all the most important trophies a footballer can dream of, including clinching the Champions League trophy once and the Balon D’or twice. He is also a one time World Cup winner (Messi and CR7 fans cannot relate, can they?)
Beyond doubt, Ronaldinho’s life and career is a fitting topic for a class on Intellectual Property. This is notwithstanding that Messi has 76 registered trademarks including his name which was registered in 2011 – I hate to admit but Messi may be more of a Goat than his contemporaries in this regard, especially with the beards. Gosh! The blonde beards.
Coming back to our discourse, in 2004, Ronaldinho secured the trademark right to the domain www.ronaldinhogaucho.com subsequent to a WIPO decision (Disclaimer: The website ran down with Ronaldinho’s European career, sadly). During his sunshine moments, Ronaldinho was an “ambassador” for several companies including Nike, Pepsi, Coca-Cola, Gatorade, and EA Sports. Particularly, in 2006, he earned over $19million from endorsements only. For this Soccer-Intellectual Property class, we will refer to such deals as Branding, an important aspect of trademarks.
Moving forward, Ronaldinho’s skills as a footballer cannot and should not be overlooked, today nor in centuries to come. Most notable of the skills traceable to him is The Ronaldinho Gaucho Elastico aka Snakebite (Entertain yourself a little with a snippet of Ronaldinho performing the Elastico in a world-class style: https://youtu.be/w3Wptt0v29w/). While there are claims that the skill may also be traced to Rivelino and Zidane, Ronaldinho popularized the skill. The question now is, can the skill be registered as intellectual property in favour of Ronaldinho, Zidane or Rivelino? Or to broaden the scope, can a soccer skill be registered in favour of its inventor?
For the records, intellectual property rights popularly include copyrights, patents, trade secrets and trademarks. Copyrights and patents are undisputedly out of the discourse seeing they protect only literary/artistic work and technological inventions respectively. Trade secrets too! The snake bite is all over YouTube and can be watched every weekend on streets and mini-stadia in Lagos so it does not rank as a business secret. Does that mean they can be trademarked?
A trademark is any sign, word, design, letter(s), number(s) or shape that may be presented graphically and which distinguishes a good or service from another. This means that an application to register the move as a graphically presented logo will most likely be approved. David Beckham had years ago trademarked his famous Free kick move as a logo.
However, such a move cannot be registered as a skill. This is hinged on the failure of the skill to fulfill the conditions for a trademark: it must be graphically presentable, distinguishable, descriptive and non-derogatory. Moreover, “trade marking” the skill will give the originator the right to use it exclusively. This, you know, is not good for the football we love.
On a final note, skills may be used by any footballer anywhere and while they are necessarily a product of talent, they cannot be protected from exploitation; at the very best, moral rights in terms of ascribing the skill to its originator. On the flip side, name initials and jersey numbers like CR7, NJR can and have been trademarked. Graphically represented Celebration styles can also be protected and leading this trend is Jesse Lingard with his JLINGZ celebration style. These and many more tell us that the aim of IP in football is to serve as a medium for expansion and not unnecessary restriction.
Halftime whistle blows…
Written By: Olamilekan Adebanjo