Character Sports Merchandising: International Legal Issues: The Legal and Practical Ways and Means of Protecting the Subject Matter in the UK, the Rest of Europe and Internationally

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Character Sports Merchandising v Character Merchandising

In the past classic 'character merchandising' has been more concerned with the merchandising of purely fictional characters (1) and as recently as 2006, in the words if Mintel:

  "At first glance the character license market is full of appeal ...
  With so many characters and so much industry marketing 'noise'
  surely the market is buoyant. In reality the market is in trouble.
  According to market estimates generated by Mintel, the UK character
  license market is estimated at [pounds sterling]3.3 billion in 2005
  (2) and market values have been falling consistently since 1999.
  This pattern is mirrored in the US"

It is acknowledged in the report that the industry may have 'over-targeted' the young (3) and the introduction of a debate as to whether there is an increasing competitive threat from music and sport (4). Indeed, Mintel urge the expansion into areas of more appeal to adults including sport (5). This recommendation of Mintel can either be perceived as old-fashioned, in the sense that current analysis of the character merchandising market perceives character sports marketing as being included within the character merchandising market (and that is has been for some time), or prophetic (in that it certainly is now). Either way, the current understanding of character merchandising is more comprehensively understood to, "take many forms in addition to a fictional character; it may be, for example, a real person, a sports or other public event, a film or television series, a pop group or sports club or university or other institution, or exhibition (6)" and as such forms part of a far larger, more lucrative market with a far broader demographic reach.

Character sports merchandising can be considered to take in merchandising underpinned by:

i. a (fictional/representative) character primarily based on the persona or endorsement of a well known sports-personality (from hereon in "sports character merchandising");

ii. a fictional character depicting a competition, event or league; or

iii. a fictional character representing a sports club.

As such it can be seen that the genre of 'sports character merchandising' is one that in fact operates across the boundaries of character merchandising and personality merchandising (and endorsement, although Laddie J. (7) and other commentators may have split opinions (8)), whereas (ii) and (iii) are more closely affiliated to event merchandising and brand merchandising. In fact the merchandising opportunities relating to exploiting (ii) and (iii) are based fundamentally on trade mark law, whereas the area of sports character merchandising is one largely based on the individual sports person's ability to protect the use of his/her name and/or image in connection with merchandising which protection can be based on a mixture of interlinking intellectual property disciplines which can include trademark law but which also extend to other intellectual property strands such as 'passing off', copyright, design right and the rather more diaphanous "image rights" (also known variously in different jurisictions as publicity rights, personality rights, right of privacy, character rights etc). Taubman Antony expresses the issues with the nature of these rights well (9), "[t]he right of personality has an unsettled, hybrid quality, lacking coherence as a distinct legal doctrine. One may query the utility of this omnibus concept, given the diverse areas of law ushered beneath this umbrella: personality cases include statutory rights to privacy and publicity; conventional and expanded passing off; privacy; confidentiality; equity providing a fusion of confidentiality and human rights law; unfair competition and trade practices (including trade descriptions);moral rights; libel; malicious falsehood and trespass to the person; and trade marks".

The figures at stake can be astronomical and a canny sportsman can more than quadruple or more his/her income by playing the 'merchandising game'. …