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

I. Introduction

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

III. The trademarks

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-)