gambling, gaming and sports : what about the personality rights and trademarks? paul van den bulck...
TRANSCRIPT
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)
17th November 2006
I. Introduction
II. The personality rights : the image right and the protection of the private life
III. The trademarks
IV. Conclusion
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
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-)