Business

IP rights: If you dont use them, you will lose them?

Legal Notes

Peter Goldson

Wednesday, August 29, 2012    

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"Life is simply a cricket match, with temptation as the bowler" - Anonymous

THE continued success of Jamaican athletes at the Olympic Games and other international sports competitions is certain to have one important consequence: the growth and development of law relating to sports and sportsmen.

Jamaican athletes — especially the highly successful ones — will have to become acquainted with various aspects of law which directly affect them and their pockets.

It is useful to begin with a discussion of image rights and trademarks. Celebrity sells goods and services, and athletes may find that suppliers of goods and services are increasingly inclined to utilise the image, likeness, and name of the athlete in association with goods and services. The athletes and their managers will have to be vigilant to ensure that the image of the athlete is used only with their permission and pursuant to satisfactory contractual arrangements.

There is a simple but important truth about intellectual property rights. If you do not use them (ie protect them from misuse by third parties), you will lose them.

Protection of image rights can be strengthened by the registration of trademarks, which consist of the athlete's name, likeness and the symbols and actions associated with the athlete. Notably, however, registration of these trademarks in Jamaica alone are unlikely to be satisfactory. Trademark registration should also be effected in those countries which represent the main markets of the athlete's promotional and endorsement activities. In this era of instant global communications, the challenge which is likely to confront the athlete is "what country can I afford to avoid?"

All top athletes dream of signing multimillion-dollar endorsement deals. However, the news that a major apparel or shoe manufacturer has signed an endorsement deal with a top athlete is the tip of the iceberg, as most of the story remains underwater. The news often belies the intense negotiations which may take place between the company and the management team of the top athlete. Of course, athletes are well advised to look beyond and beneath the dollar figure being offered. The athlete could risk losing much of what he thinks he has if he does not carefully examine and consider the details of the agreement, such as what actions might lead to his forfeit use of his entitlement under the contract or how his ability to sign with other companies might be affected. Like many things in life, the devil is in the details.

The issue of estate planning is not one that persons would often consider to be relevant to a discussion of the legal issues of which athletes should be mindful. That said, athletes must plan and provide for the two certainties of life, Death and Taxes. In any event, estate planning is not for the old alone. Everyone who has substantial assets should be concerned to plan the ownership of these assets (including by an entity incorporate in a particular jurisdiction) to minimise his or her exposure to tax and to ensure that the property will benefit the persons chosen by the owner.

Athletes will not remain young forever and it also suits them to consider investments which specifically provide for a pension on retirement. The proliferation of independent approved retirement schemes for the self-employed should make the choices easier for a present athlete.

Lastly, I must also emphasise the important of appearance contracts. The way to ensure that other people will get rich on your talent is to rely on word-of-mouth contractual arrangements. Athletes (and their managers) should become accustomed to relying on written agreements to govern their professional arrangements including their appearance at events. The request for a written contract should become second nature to the successful athlete.

Our successful athletes should realise that the event captioned by the cameras is only a small part of the story of their success. There is a lot more to it which they will have to learn.

Peter Goldson is a partner at Myers, Fletcher & Gordon and is the head of the firm's Commercial Department. Peter may be contacted via peter.goldson@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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