Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

Introduction

Coasting from a magazine subscription to the realm of dot-coms, fantasy sports platforms are attaining popularity distant from their Atlantic domicile and tied up with them like peas-in-a-pod are questions of Intellectual Property Rights. While partaking in fantasy sports, the user interacts with strategic elements of sports as observed in any real sport but is restricted to a virtual platform, essentially like a simulation all the while vying for a favourable outcome by exacting knowledge, experience, and intuition of the sport in order to draft a team of players for the same, which is further quantified and rewarded by way of ‘points’. The player profiles are based on real-world statistics and figures thus enhancing the experience of the user and thus invoke questions as to infringement of intellectual property rights as the platforms tend to instil names, images, the logo of the team and biographical data.

Statistics Are Facts

The Indian Copyright Act, 1957 (“Copyright Act”) protects original literary, musical, artistic and dramatic work as well as rights of broadcasters and performers from exploitation by others. But in order to be protected under the Copyright Act, statistics must qualify as ‘original’, ‘literary’ work.[i]In the case of EBC v. Modak[ii] it was held “copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work.”

“Hot News Doctrine” developed by US Supreme court states, ‘hot news’ refers to written material or the live televised events, often “facts”, that hold value for a short duration and soon, upon moving into the “public realm” lose their value.[iii]

The division bench of the Delhi High Court in Akuate Internet Services Private Limited v. Star India Private Limited[iv]held that match information, which essentially comprises facts, does not per se have any protection under Copyright Act. It was also held that information once passed into the public domain upon its broadcast for live viewing, such information amounts to ‘fact’ and henceforth no proprietary rights can be claimed in it, irrespective of the fact that the person is reproducing this information for commercial gain or otherwise.[v]The above judgment clarified the position that there exists no copyright in statistics of sports matches as they are merely facts and such case for copyright infringement can only be instituted if statistics are reproduced in the exact same format. Whereas, the statistics used by fantasy sports platforms are a compilation of overall points attained by virtue of all players drafted by the user to serve the purpose of which, statistics of real matches are used but do not amount to infringement of copyright.

Use Of Logos And Names Of Teams, Leagues And Players

As a consequence to accurately resemble real-world scenarios in sports in order to stimulate the user, fantasy sports platforms are susceptible to trademark infringement since they abide by unaltered names of players, teams and team logo(s). To bring forth a claim against trademark infringement under section 29 of The Trade Marks Act, 1999, apart from proving the use of an identical or similar trademark in the course of trade, it is essential to prove that use of such mark is likely to be taken as a trademark.[vi]

The use of a registered trademark would be deemed infringement only if it indicates in the course of trade, a connection between the person and his goods irrespective of his intention. To prove infringement, deception should be such that the public would assume that the mark is indicative of the same being a trademark of a registered proprietor.[vii]

In general, the mere usage of a trademark by a third party would not ipso facto amount to infringement if such person uses the trademark in relation to an entirely different set of goods or services.[viii]Remedy for this is purposeful under section 29(4) of Trademark Act wherein a similar or identical mark being used in the course of trade in relation to either identical or dissimilar goods or services, where the registered trademark has a reputation in India and the use of the mark is detrimental to repute of the registered trademark. This concept of dilution of reputed registered trademark is applicable when the use of a registered mark by another person would amount to diminishing or weakening the value of the trademark.[ix]

It may, however, be argued that player names, team names and logos as used by fantasy sports platforms constitute dilution but the requirement to prove unfair advantage or detriment to the distinctive character or repute of the registered trademark may defeat such a claim. Fantasy sports platforms may argue that the element of dilution i.e. “causing detriment to the character or repute of trademark” is not met as a criteria requirement in their case, as display of matches on fantasy sports platforms provides an accurate result of the match, played in real-time and in no way tarnishes the teams or the players. Instead, as previously stated, fantasy sports games are practically advantageous and render proprietors of the registered trademark in good light.

Images and Copyright Law

The Bombay High Court in Kesari Maratha Trust v. Devidas Tularam Bagul,[x] observed that publication of a photo by copying it from another published material without procuring permission from the photographer is tenable as copyright infringement. The underlying principle in the aforementioned judgment emanates from the interpretation of section 13(a) read with section 2(c) of Copyright Act; it gives the owner of a copyright an exclusive right to reproduce the image in any manner.[xi]Fantasy sports platforms have to procure permission or license prior to using such image since the photographer, player, professional league, broadcaster, publisher of the image or another such proprietor could be the copyright owner of an image subject to use on such platform.[xii]Thus images used after procuring permission will not invoke any issues relating to copyright infringement.

IPR ROSTER

Fantasy sport is trigger-happy in terms of invoking IPR litigation due to the tenaciousness of Indian Copyright Act, 1957 and the Trade Marks Act, 1999 in matters regarding infringement of proprietary rights yet fantasy sport operators may have otherwise inadvertently shed liability with the support of judicial precedent as well as undermined interpretation of the legislation regarding the same. The substantial increase in fantasy sports participation in the country may, on the other hand, incite frivolous IPR litigation against operators of fantasy sports and could well be perceived as an indiscernible issue.


[i]The Copyright Act, 1957, §13

[ii]Eastern Book Company and Ors.v. DB Modak and Anr., (2008) 1 SCC 1, at ¶8.

[iii]International News Service v. Associated Press, 248 U.S. 215 (1918) (“INS”).

[iv]International News Service v. Associated Press, 248 U.S. 215 (1918) (“INS”).

[v]International News Service v. Associated Press, 248 U.S. 215 (1918) (“INS”).

[vi]Nestlé India v. Mood Hospitality, (2010) ILR 3 (Del.) 560.

[vii]Hawkins Cooker Ltd v. Murugan Enterprises, (2008) ILR 2 (Del.) 137

[viii]Rana Steels v. Ran India Steels Pvt. Ltd., 2008 (102) DRJ 503 (Del.).

[ix]Tata Sons Limited v. ManojDodia&Ors., 2011 (46) PTC 244 (Del.).

[x]Kesari Maratha Trust v. DevidasTularamBagul, 1999 (19) PTC 751 (Bom.)

[xi]The Copyright Act, 1957, §14(c).

[xii]https://www.ifsg.in/wp-content/uploads/2018/03/FantasySportsPublication.pdf

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