Symposium of the Forum on International Sports Law: Rights Protection at Major Sporting Events in German and European Law |
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MPI für Privatrecht, Hamburg 10.08.2007 |
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On 6 October 2006 the Forum on International Sports Law organized a symposium on „ Rights Protection at Major Sporting Events in German and European Law”. As the 2006 Football World Cup showed, numerous legal problems arise in the field of trademark protection in a national as well as international context. In preparation for the 2008 European championship in Switzerland and Austria, the Swiss government drafted a bill in order to prevent non-sponsors from taking advantage of major sporting events. In South-Africa, host of the 2010 World Cup, a law has already been enacted to provide a legal framework regulating so-called ”ambush marketing” at major sporting events. The Forum invited four speakers to address this issue and to prepare discussions which would follow their presentations.Prof. Dr. Peter W. Heermann LL.M. (University of Bayreuth) dealt with three decisions by German courts (BGH v. 27.4.2006 – I ZB 96/05 and I ZB 97/05, OLG Hamburg v. 7.2.2005, GRUR-RR 205, 223) concerning the protection of the terms “FIFA Fussball WM 2006”, “Fussball WM 2006” and “WM 2006”. Prof. Heermann especially addressed the requirements of the MarkenG (Trademark Act) and critically analysed the reasoning of the courts. Among other things he discussed the hostile attitude of the BGH (Federal Court of Justice) regarding so-called “event marks” as a new type of trademark. Subsequently, Prof. Heermann criticised the classification of these terms as “Kennzeichen” (distinguishing marks) which places them within § 5 sec. 2 MarkenG, preferring instead to classify them as “Werktitel” (the title of a work) according to § 5 sec. 3 MarkenG. His presentation closed with some remarks on future strategies of FIFA and non-sponsors. The second presentation given by Paola Müller (Legal Counsel with FIFA) illustrated the strategies of FIFA with the aim of protecting FIFA-marks. The protection programme set up by FIFA is based on four pillars: registration of marks, monitoring, prosecution of product piracy and counterfeiting, and the use of RPP (Rights Protection Programme) teams. She explained that protection of FIFA-marks is necessary to ensure that they can successfully be marketed to sponsoring partners. This marketing revenue is the financial basis of all FIFA activities. Retrospectively, FIFA considers its protection programme to have been successful despite the two cases lost before the BGH, pointing to almost 2500 successfully registered and, hence, protected marks worldwide. In view of the 2010 World Cup, FIFA expects to be able to continue its IP-rights protection programme successfully in light of the favourable legal framework in South Africa. Dr. Mirko Wittneben (Heuking Kühn Lüer Wojtek in Hamburg) identified advertising efforts employable by non-sponsors that could take advantage of major sporting events without injuring protected marks. Most notably, there exists legitimate manoeuvring room through the use of indirect references using abstract terms, stylised illustrations and emotional appeals. Providing numerous examples, Dr. Wittneben demonstrated the inventiveness of many enterprises which took advantage of the football world championship without having been a sponsor. Finally, Dr. Stephan Netzle LL.M. (Wenger Plattner, Zurich) talked about mark protection under Swiss law. Starting with the current legal setting, he pointed out that mark protection at events is not existent in Swiss law. On request of UEFA, the organizer of the 2008 European championship, the legislature drafted a new law which is currently in legislative proceedings. After a short overview of its content Dr. Netzle explained the adverse political circumstances at the time of the presentation of the bill. Given the arguments put forward by the opponents of the bill, he saw little chance that the draft legislation would succeed. Concluding, Dr. Netzle proposed some alternatives to the bill. After the presentations the opportunity was given to ask questions followed by a discussion moderated by Reinhard Zimmermann. |
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Date of publication: 28.03.2007 |
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