Fantasy Sports refers to an area of online gaming wherein participants put together virtual teams composed of proxies of current professional players within a league and play for points and/or money. The teams earn points based on the real life performance of the players and compete against other teams accordingly. Everybody manages a roster by adding, dropping, trading and selling players to keep winning. Generally, such fantasy games have no registration fee in order to attract as many participants as they can, although there are those that charge a fee as well. With the rapid emergence of technology, fantasy games can be accessed on a variety of platforms or personal devices. The realm of fantasy sports has seen massive jumps in terms of participation and revenue generated over the last couple of years, both globally as well as in India.
Arguments to substantiate that fantasy sports are to be considered as a game of skill rather than a game of chance were seen in Shri Varun Gumber v Union Territory of Chandigarh and Ors where the High Court of Punjab and Haryana observed that:
“A person, while participating in a tournament was required to:
- a) use considerable skill, judgment, and discretion while drafting his fantasy sports team;
- b) assess the relative worth of all the players available for the draft and evaluate the worth of a player against other players;
- c) abide by the rules while evaluating a player’s statistics as well as the strengths and weaknesses of such players;
- d) ensure that the draft did not contain a significant number of players from a single real-world team, and
- e) evaluate and take into consideration other crucial factors with respect to the game, pitch, and condition of players.”
This position was subsequently upheld by the Supreme Court via appeal in the case of Gurdeep Singh Sachar v. Union of India stating that ‘treating online fantasy sports as lacking any element of betting or gambling is no longer res-integra considering the judgments passed by the High Courts of Punjab & Haryana and Bombay’.
Fantasy Sports and Trademarks
One of the most glaring problems that trademark owners of high-profile sporting leagues and sports teams face today is the piracy of their trademarks. Innumerable fantasy sport developers have taken advantage of the fans’ desire to identify with a popular team, leagues and athletic organisations by recreating anything from sneakers to everyday accessories that include a team name, nickname, team player name, or a logo or symbol without permission.
Professional sports is a multi-billion dollar industry where athletes are beginning to find ways to leverage and add value to their own personal brands. Thus, the commercialization of sporting teams and athletes is ubiquitous. This in turn has made the licensing of trademarks and other intellectual property a big business in sports coupled with the frenzy of fans towards any item that is merely affiliated with such a sports team/brand.
Furthermore, Section 14 of the Trade Marks Act 1999 (the Act) provides that if and when an application is filed for registration of a trademark suggesting a connection with any living person or with a person who died 20 years before the date of filing the application, the Registrar of Trademarks may require the applicant to provide the consent of such living person or the consent of the successors of the deceased and may refuse to register the trademark without such consent. Therefore, under the Act, an individual cannot register a trademark relating to a celebrity (living or dead) without the celebrity’s or his or her successor’s consent. Further, use of a celebrity’s name as part of a domain name can also be restricted under the Act.
In addition to trademarks, the players are entitled to certain rights which are covered under the arena of ‘publicity rights’. Therefore, an integral issue that needs to be addressed is whether the personality rights of a player are infringed by using their names in fantasy sports. The personality rights are elucidated as a broad bundle of rights vested upon an individual’s persona which is recognized based on their public image, likeness, name, skills, traits, character and fan-following. In Star India Private Limited v. Piyush Agarwal, the Delhi High Court recognized the publicity rights of a player and recognized that the concept has been adapted from the right to privacy. Furthermore, the High Court of Delhi in the case of ICC Development (International) Ltd v Arvee Enterprises, held that “publicity right has evolved from the right to privacy and can be in here only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc…. Any effort to take away the publicity right from the individuals to the organizer of the event would be violative of articles 19 and 21 of the Constitution of India. The publicity right vests in an individual and he alone is entitled to profit from it.”
One of the solutions to the IP rights problems would be the introduction of a licensing agreement that gives third parties a right to use the registered Trademarks and related resources coupled with an exclusive right to operate such resources. The goal of such a licensing agreement is to ultimately synchronize and protect the rights of both sides, within the current scheme of things the rights of the athletes or ‘proprietors’ are often not regarded as equal in importance as those of the stakeholders. The aim therefore must moreover be to provide better protection to the rightful first owners i.e., the sportsmen/sportswomen themselves.
This article has been authored by Jacob Ninan.
