The growth of the sports betting market has raised a series of legal debates about this sector in Brazil, involving topics such as advertising, image use rights, intellectual property, prevention of money laundering, responsible gambling, data protection and several other subjects. that arise in the midst of the legal uncertainty that results from the lapse of regulation of the themes.
In this article we will focus, more specifically, on issues of trademark protection and intellectual property involving club and player names, and their consequent implications in the sports betting universe.
When accessing any sports betting platform, it is natural for the consumer to come across names (sometimes also with shields) of football clubs (and other sports) there, in addition to the name of athletes, elements necessary for the consumer to be able to use platform at least.
First, when approaching the issue of using club names and shields on these platforms, we need to mention art. 87 of the Pelé Law, responsible for regulating the sports environment in Brazil.
Through this provision, the legislator determined that clubs and athletes are exclusive owners, regardless of the registration of trademarks of the “denomination and symbols of the sports administration entity or sports practice, as well as the sports name or nickname of the professional athlete,” creating, thus, the exclusive right for the commercial use of the names, symbols and denominations for the owner of these, be it the club or the athlete in question.
This provision of the Pelé Law is essential for both clubs and athletes, as it ensures that only authorized persons can commercially use the branded properties of the club or athletes, protecting them against piracy of products that seek to deceive the consumer when using the distinctive signs of the clubs to convey an image of an official or licensed product by the club.
However, it is essential to distinguish between the use of the club's properties for commercial use loaded with bad faith (Ex.: use of the club's symbol without authorization in a beverage line, making it appear that it would be an official product of the club), from use of the name of clubs and athletes made by sports betting platforms.
It is clear that sports betting platforms do not use the names or symbols of clubs or athletes to confuse the consumer or even to convey an image that they are official products of the club or partner of the athletes.
The use of properties that characterize clubs and athletes by these platforms are essential elements of the nature of the business, after all, it is impossible to imagine a user being able to place a sports bet without knowing who the clubs athletes are and against whom those clubs will play in the round.
In this relationship, there is a notorious public interest of the consumer in having basic information about clubs and athletes, from which are the matches in that round to which are the athletes who have an expectation of acting in that match. Without this information, the development of the sports betting product would not even be possible.
See, therefore, that, unlike the undue commercial exploitation of the properties of clubs and athletes in the sale of unlicensed/pirated products, sports betting platforms, and even other platforms, such as fantasy sports, do not use the name or symbol of clubs and athletes for directly commercial purposes, but only as an informative link necessary to offer their products to consumers. This is even the consolidated understanding in countries that already have a more advanced and structured betting and gaming market, such as the United States.
Recently, the Indiana State Supreme Court ruled that fantasy operators could use names, images and statistics of clubs and athletes on their platforms, after all, this information, like betting information, has an informative character, a news link, differentiating, therefore, from the exclusively commercial use of the image/name of clubs and athletes:
“This information is not stripped of its journalistic value simply because it is used in the context of a fantasy sports game. On the contrary, fantasy sports operators use factual data combined with a significant creative component that allows consumers to interact with the data in a unique way.”
Another very relevant point for the discussion is to observe that there is no need, at any time, to talk about actions of “ambush marketing” as the term is internationally known, by sports betting houses when using the name of clubs and athletes on their platforms.
The concept of ambush marketing provides that the entity that uses this strategy intends to induce the public to believe that its products or services are approved or associated with the official organization of the event/club/entity/athlete in question.
Notably, this is not the case with sportsbooks. It is unreasonable to say that consumers of products offered in sports betting houses believe that it is an official product of club X or athlete Y. It is clear that the club and athlete are only mentioned there for informative reasons and of notorious public interest for minimal product development.
Therefore, there is no damage to the image of the club or the athlete in the availability of their name on these platforms, after all there is no value judgment or opinion on a club or an athlete, there is no “ambush marketing” or improper commercial exploitation.
Thus, as demonstrated in this brief article, there is no need to talk about the need for authorization by intellectual property holders (clubs and athletes) in the use of their names or symbols by sports betting platforms, since the use characterized there is minimal and a fundamental part of offering the service.
And more importantly, the use of these properties is merely informative, at no time does it confuse or create doubts in the consumer or even harm the image of the club or athlete, since there is no link between that product as an official product of the club or as a product linked to a particular athlete.
Finally, the use of the name and image of clubs and athletes on sports betting platforms must be seen as a natural consequence of the business, and not as a diabolical exploitation by companies that supply sports betting and, for this and many other reasons, it is crucial that the State regulates and opens the debate on this market that continues to grow and bring more financial resources to Brazilian football.
Fernando Vasconcelos
Advogado do Rei do Pitaco
