Gambling, gaming and sports : what about the personality rights

and trademarks?

Paul Van den Bulck

Partner at Ulys Law Firm (Brussels-Paris)Lecturer at R. Schuman University (Strasbourg)

www.ulys.netpaul.vandenbulck@ulys.net

17th November 2006

I. Introduction

II. The personality rights : the image right and the protection of the private life

III. The trademarks

IV. Conclusion

I. Introduction

II. The image right

II. The image right

a. Introduction

b. Legal framework

c. The image right of celebrities : sportsmen and sportswomen

d. An image right on the sport event ?

a. Image right

Principles =

• Necessity to obtain the consent of the person portrayed to take the picture

• Necessity to obtain the consent of the person portrayed to publish the picture (medium/numbers, etc…)

b. Legal framework

• International framework :

- European convention on human rights : art. 8

- International pact of New York on civil and politics

rights : art.17

• National frameworks

c. The image right of public personalities

1) Image right Vs right of information

2) Prior authorisation

1) Image right Vs right of information

• Image of public personalities less protected

= celebrities

= persons who are momentarily involved

in the current events (“news”)

• Their image right = Limited by the right of information (art. 10 ECHR) : conflict between 2 rival rights

• Assumption of authorisation (to take/to publish)

2) Prior authorisation

Assumption of authorisation = limited by 3 conditions :

• Respect of privacy. The information has to be related to “public sphere” (moving criteria)

• The information may not be denigrating or offending (moving criteria : facts and opinions)

• The aim = to inform the public → exclusion of “commercial use” (commercial/political/etc… advertising)

•The aim : inform the public

a. Exclusion of “commercial use”

• The distinction between the commercial aim or the informative aim not really defined = object of controversy

• 3 situations

- using an image as a commercial product itself or as impression on a product (posters, T-shirts, …)

- using an image for a publicity for products or services (advertising)

- using an image to illustrate a fact or an event

• Brussels Court of Appeal, 4 October 1989

→ a famous sportsman cannot refuse the publication of his image or the mention of his name if 3 cumulative conditions are fulfilled :

• the aim of the publication is to inform the public• the publication is an illustration of a news

relative to the sport life• the publication does not attempt to the private

life of the sportsman

• Irrelevant criteria : commerciality of the activities of the publisher (media –newspapers, tv …- books editors; websites, all others business companies)

• Have to distinguish the commercial activities of the publisher and the commerciality of the publication (advertising purpose)

b. Case Law

• Examples :

- The « Dominici Case » (TGI Paris, 10 January 2005) (book relating to rugby techniques)

- Administrative Court of Nîmes, 10 May 2005 (school books)

• The question of the bets concerning sports events

- Usefulness to give names and illustrate

- legal issue : information or commercial exploitation ?

- arguments for an informative aim :

- information right applies not only for the “media” in the strict sense (European Court of human rights)

- the commercial character of the activities of the publisher is

not a specification for the distinction between information aim and advertising

III. The trademarks

a. Legal framework

- The international trademark

- The community trademark : CE regulation n°40/94

b. Field of the exclusive right on a trademark

→ Does not include the right to refuse the use of the trademark if this trademark is used with informative purposes (means : to describe the properties of a product or a service)

In this case, the trademark is not used as a trademark.

→ Case law : the « Hölterhoff Case »

c. Application for the sports events

1) Can be protected as a trademark :

- The name of a sport club (Real Madrid), but also figurative elements (T-shirt, etc…)

- The name of a sport event

→ example : « Olympic games »

2) The specific question of the bets concerning a sports events

- Facts : mention of the name of a sport club or a

sport event for an offer to bet

- Legal issue : illegal use of a trademark or use of

this trademark with informative aim ?

Arguments for a use with informative aim

- Information is not restricted to “media” stricto sensu (dictionary, etc…)

- The trademark is not used as a trademark: does not offend against the essential function of the trademark (distinction of the products or services)

IV. Conclusion

- No discrimination between publishers (media/auction companies/financial companies/ dictionaries/school books/Betting websites)

- Distinction : Commercial purpose of the publisher / “commercial purpose” of the publication

- Information aim = factual issue

Questions &

Answers

Paul Van den Bulck

Partner at Ulys Law Firm (Brussels-Paris)Lecturer at Robert Schuman University–Strasbourg-)

www.ulys.netpaul.vandenbulck@ulys.net