Tyrone Hernandez

ATTITUDE, DISCIPLINE, FAMILY, HONOR, LOYALTY, RESPECT. OSS!!!

COMPETING TRADEMARKS IN SPONSORED SPORTING EVENTS

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This coming Sunday September 1 will be a special day for Ateneans and La Sallians which is the second round match-up of the UAAP between arguably the most storied rivalry in collegiate sports. Araneta Coliseum will once again be flooded with Green and Blue. From the cheers of former Senator Dick Gordon to the chants of Mr. Pure Energy himself Gary V will definitely as they say bring the house down. Sponsors of the clubs have really worked hard to get them because of the market they possess. Both schools have produced outstanding alumni in the fields of government, business, sector, the law and medical profession. Therefore there is a wide range of network expansion where the brands will be really known once the players suit up their brands. In a basketball game the most notable equipment of sponsors is the shoes they wear. As far as I know both clubs are being endorsing the brand Nike while a few of the respective players from both sides sport Adidas from their own personal endorsement.

 

Just do it, think different, be what’s next are just some of the famous slogan of Nike, Apple, Microsoft respectively. Those slogans can be seen and heard from different media outlets. Some of us can immediately associate those slogans to their name brands. Such brands are even the sponsors of professional players and teams. This sponsors generate so much profit through their brand ambassadors that they get so much exposure or “air time” when their ambassadors are playing. It was reported that Michael Jordan earns as much as 80 Million dollars per year after his playing career. Thus, he even has a Jordan Brand a subsidiary of Nike. How does a retired professional basketball player earn that much, it is by sponsorship. It has already been a fashion trend to wear Michael Jordan Shoes or famously called by a single letter which is J’s. From rappers to athletes to hipsters, wearing J’s is a fashion phenomena. On Ebay they sell as much as 1,000 dollars for a pair of limited edition J’s. Music moguls and hiphop artists such as Drake, Eminem, J Cole, Rick Ross, Nelly and much more have always worn the shoes and even some of the lyrics in their songs it was mentioned that they are wearing J’s. There was even a report from TMZ that a famous celebrity has her Chihuahua wear custom J’s which cost her around 5-10 thousand dollars.

Notably it was rumored that while Michael Jordan was watching his son Marcus play basketball in high school he noticed that his son’s team were wearing a different brand of basketball shoes and it was only his son Marcus who was wearing the Jordan Brand. The following day the whole team was wearing Jordan brand shoes already which was custom made and was colored and patterned from the colors of their school.

A few weeks ago, the whole country was going gaga over the triumph of our very own Gilas Pilipinas basketball team. In the broadsheets, radio, television, and in social media, everyone showed support for our team by watching the games live at MOA Arena or just staying at home glued to the television set and deep inside they are cheering “PUSO PUSO” which has been a sentiment towards the Gilas Team Pilipinas Basketball team. Hoop junkies paraded the streets of Pasay City to show their undying support to our basketball team who have endured so much failure in the international stage in the past competitions to make sure that this competition will be a different one and which will in turn from sadness to joy. Fortunately our team did well enough to finish second and to qualify to the World Basketball Championship which will be held in Spain next year.

If a certain brand sponsored a sporting event and a non sponsor brand gives out tickets with the recipients expected to wear their brand for exposure will there be a violation or not? In my opinion, my stand is that all people should be treated equally regardless of status.

First and foremost, we should define what a mark is. As defined under RA 8293 or Intellectual Property Code of the Philippines, “Mark” means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.

Growing up we have seen different marks, as a basketball fanatic growing up, the brand Nike is the most popular for me especially their visible sign the “Swoosh” or the check mark. Now I believe Nike has the most number of athletes that they sponsor from basketball to football to American football, ice hockey, golf and athletics. They have their so called brand ambassadors, the likes of Michael Jordan, Tiger Woods, Cristiano Ronaldo, Kobe Bryant and LeBron James both of whom recently visited the country to promote their brand.

As for food the most famous probably and will ever be is the “M” sign of McDonalds. Even our own Supreme Court has decided in McDonald’s Corporation vs. Macjoy Fastfood Corporation G. R. No. 166115, February 2, 2007 [i]where McDonalds is one of the parties to the case where there were various instances that their trademark is being violated by private companies for their own business.

There has been lots of jurisprudence where trademark has been the focal point of contention. We have the Asia Brewery Case where subject was the shape of the beer bottle. Another interesting case is the Rolex case wherein a music lounge was named after the famous watch brand and lastly the case of the Del Monte Ketchup. All this jurisprudence tends to show that there was indeed a violation of trademark of a certain brand. As a result of this, there was confusion from the consumers as to whether they are representing or being a subsidiary of their “mother brand” which leads to the probably loss of profit and bad business between producers and consumers.

As for technology Apple has pretty much dominated the market scene with their array of services from smart phones, mp3/4 players to tablets and laptops. The “apple fruit” logo has really been their visible sign, the bearer that when you see it you instantly recognize that is an Apple product.

While watching the games we noticed the different shoes the players were using. Some were sporting Nike, Adidas, Reebok, and Asian brands such as Peak and Li-Ning. But do we wonder whether they are allowed by the FIBA if and if a sponsor by FIBA has set restrictions to their participants that the only brand allowed is a certain brand which they will decide upon.

A hypothetical question will arise wherein in competing trademarks, if a sponsored sporting event such as FIBA games, a non sponsor brand gives out tickets to such event, with the recipients of suck tickets are expected to wear their brand (trademark or trade name) for brand exposure. In reality, I think this happens a lot although not really being talked or discussed about.

First and foremost my ground is all people should be treated equally regardless of status. But we should not forget that being a sponsor of that event they have the prerogative to set strict guidelines. Example of it would be which brands they will allow for the participants to use. Will it be Nike and Adidas only or only one of them? On the other end, a country who is about to participate must comply with the said requirement in order to participate.

 

Usually the sponsors of such games are seen beside the logo of the games itself. We can see it on commercials, print ads, and can be heard on radio after promoting the said games.

This past FIBA Asia Championship 2013 have 3 sponsors [ii] Bodog Asia, a Manila-based online gaming company which will receive perimeter boards and in-stadia LED advertising    at the tournament. Another sponsor is Peak Sports Products, a sportswear and sports goods industry with ambassadors such as San Anotonio Spurs’ Point Guard Tony Parker, Miami Heat’s Shane Battier, and Toronto Raptor’s Kyle Lowry and much more athletes from different sorts of sports. Lastly, our very own Smart Communications wherein Mr. Manny V. Pangilinan aka MVP has been a stalwart supporter financial and moral booster of the Gilas Team and the whole basketball scene of our country from the amateur leagues to the professional level.

From a fans point of view it seems that there was no stringent requirement brought about by this sponsors to only use their brand. Because we have seen players from different teams wearing different brands of basketball shoes and even LA Tenorio’s new LeBron James basketball shoes, which is made by Nike caught my eye and if I have enough money I would probably go and buy one. I guess that the sponsors probably made certain exceptions that the public did not know about with regard to shoe brands. For all intent and purposes they feel that by letting the players choose their own show brand will serve best their interest of having a good tournament that competitors feel comfortable on what they are wearing not being prohibited by sponsors.

Did you know that LeBron James is the NBA’s leading shoe salesman? [iii]

According to Kurt Badenhausen of Forbes[iv]

“Nike generated $300 million in U.S. retail sales in 2012 for James’ signature shoes, according to research firm SportsOneSource. Nike’s haul represents a 50% increase from sales of James’ kicks in 2011. “The first thing is the aesthetics. The shoes look great and his star stature continues to rise,” says SportsOneSource analyst Matt Powell. “The media attention on him helps him sell more footwear.” The LeBron X caused a stir last summer when the Wall Street Journal reported that the shoes would be priced at more than $300. In reality, the base LeBron X shoe costs $180 and the technology-embedded shoe with Nike+ sensors, which tracks how high players jump and how far they run, is available for $260.

Nike first signed James to a seven-year, $90 million contract in 2003 before James had finished his senior year in high school and was drafted by the Cleveland Cavaliers. It remains the largest initial player endorsement contract ever handed out to a Nike athlete. His early Nike sneakers got mixed reviews and sales were sluggish for the player dubbed “The Chosen One” on the cover of Sports Illustrated in 2002. But James and Nike’s designers eventually found the right fit. “LeBron VI was the first really good looking shoe,” says Powell.

Nike is James’ biggest marketing partner and helps put him on top of the NBA’s top-earners from endorsements. Nike re-signed James in 2010 in a deal that James’ business manager Maverick Carter calls “more of a joint venture.” Forbes estimates that James earns $20 million annually, including royalties from the Beaverton, Ore footwear giant.

 

In my opinion, a sponsor may set strict guidelines wherein it can provide that only their particular brand will be the one used by participants in the tournament’s duration if they want to as a requisite of participating. Thus, the countries will have to abide such rules or risk being disqualified for failure to follow.

Under the 1987 Constitution [v] it is recognized there that the State recognizes the indispensable role of the private sector and they encourage private enterprise, and provides incentives to needed investment. Based on the said provision a sponsor can indeed prohibit brands of non sponsor to their sponsored event such as FIBA Championship. Because by doing such they will definitely earn profits and in return our government will earn profits too from the taxes of the sponsors which is considered as the “lifeblood of our nation” for they pay for the expenses of our governments when the latter build roads, schools and infrastructures for the benefit of the citizens. Private sector really helps boost our economy for they generate jobs to our countrymen and help alleviate poverty.

Also under the 1987 Constitution [vi] it is recognized that no law shall be passed abridging the freedom of speech, expression, or of the press. By looking at the provision it does not look easy to do as others might think. As an example will be when you go outside your house naked and you yell this is how I express myself of course that is against public order or policy or better yet it shows lack of respect towards other persons. Definitely, you will be liable to offenses if you do this and this is not the proper way of expressing one’s self. With regard to the problem at hand a person has the right to wear what he wants or feel and it should not be subject to any regulation unless it promotes illegal speech.

As we have learned in Political Law it can be limited by the Clear and Present Danger Rule and Dangerous Tendency Rule

Clear and Present Danger Rule means the abridgment of the freedom of expression and of the right of assembly and petition can be justified only where there exist substantial danger that the speech, publication, assembly, and petition will likely lead to an evil which the government has the right to prevent.[vii]

While Dangerous Tendency Rule means that speech may be curtailed or punished when it creates a dangerous tendency to produce a certain evil which the State has the right to prevent. An example is if the content of the speech or expression tends to stir rebellious sentiments against the government, or to commit crimes. All it requires, for speech to be punishable, is that there be a rational connection between the speech and the evil sought to be avoided. [viii]

 

 

One important thing to remember in the case at bar is that the sponsor must have an exclusivity of contract with FIBA. In that case, the sponsor can state terms and conditions for participants to abide. If another brand is advertising their own while the FIBA games are ongoing they will have a problem with the sponsor. Because I think the sponsor would not want another brand to interfere with their business since they are the sponsor of that event which will lead lesser profit for them.

If not clearly stated in the guidelines, the non sponsor is not prohibited from advertising its products even if it competes with the sponsor. They can invoke provisions of the 1987 Constitution and Fair Competition.

In reality, sponsorship is really a big deal. Don’t we notice when an actor/ actress is guesting on a television show, after being interviewed the host of the show ask him/ her to ‘plug” there he/she will say a something like this “ I would like to thank Dr. Vicky Belo or Dr. Calayan for my skin, David’s Salon for my hair, Kamiseta for my clothes, Aldo for my shoes, and a bunch of other sponsors. There in that moment all those brands did earn a profit already. The people who watched it will have an idea that “ Wow si ganito si ganyan, nagsusuot pala nun, or baka pumuti rin ako pag pumunta ako kay Belo / Calayan”. We tend to follow whatever our idols wear to think that it might do good to us. It is alright to follow them but we must bear in mind that not everything which is a trend nowadays will suit you. People say “ Hindi lahat ng uso maganda!”. In all fairness, it is really true media make us believe that since this beautiful actress is wearing this once you wear it it will make you as beautiful as the endorser.

But let us be reminded that fairness in competition is still a primary goal for us, the consumers and the producers. We want that we pay for something that we like and we will enjoy. Not paying for something less but the quality is not so good which in turn will be a waste of hard earned money on the part of the consumers. The government and the people must have a balanced interest with regard to competing trademark. For the government to make sure no unfair competition is happening and the quality of the goods is highly maintained. While the people as consumers must pay for what we get and try to think that those people in that business are people too, in the end of the day they must make ends meet for their family as well as for us enjoying the benefits or services we bought from them.

 

 

           

           

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