It has got off to a lukewarm start, but we can’t ignore it any longer: the European Championship is in full swing, and the Red Devils have already secured their place in the 1/8 finals. Time for the marketers to jump on the train and stir up the devilish fire among the tricolore fans some more. But how creative can you be? The football association is sitting on its golden eggs like a hen!
Football is not just a game.
Football is big money. And a European Championship is a high mass. Few events can bring such a large group in society to its feet for weeks on end. So it is not difficult that everyone wants to get a piece of the pie.
Our Red Devils. A national pride. A team of talented individuals. A staggering market value. Value that is created by scarcity. Scarcity of talent. But the intellectual rights also contribute to this: the name, the logo, the images of the players. They are all protected by intellectual property rights, creating exclusivity and de facto scarcity.
A strong brand, strict rules.
The trade mark ‘Red Devils’ and a whole host of related logos have been registered by the Belgian Football Federation, which therefore holds exclusive rights. This means that they can decide who can use these marks and under what conditions.
You cannot really blame the Football Federation for keeping a strict eye on this After all, it is one of the essential obligations of every trademark owner to guard his trademark, and thus prevent dilution. Something we always point out to our clients.
So it is only Adidas, ING, Jupiler and a few other wealthy companies who can officially link their name to the Red Devils, and who can launch merchandising and campaigns using the Red Devils name or the KBVB logo.
And what about the alternative merchandising? The products and initiatives that appeal to the association that the public spontaneously makes with our football team? Think all kinds of tricolore gadgets: mirror covers, wigs, horns, flags. And red football t-shirts with the word “Belgium” on them.
It is a strong association, and perfectly legitimate. After all, the name Belgium/Belgium and the Belgian flag are not protected (and cannot be protected) and can therefore be used freely.
The story becomes a little more difficult when commercialists and marketers jump through hoops to evoke associations with our Red Devils by coming up with all kinds of creative names and images that are slightly different, but still look like them. Even though we come across this quite often in our advisory role: they are making a big mistake. After all, a trademark infringement does not only arise when an identical (similar) sign is used, but also when a similar sign is used.
Referring brand use
Do we always have to keep our lips sealed when we want to make a reference to our national football team? Fortunately not. Trademark law provides an exception for referring trademark use. his is when the trademark is used in a descriptive way, for example to inform the public. If a pub (within the applicable Corona rules of course) decides to display the matches of the Red Devils on a large screen, it is perfectly normal that it can announce this.
Our football heroes: what about the photos of these public figures?
A recognisable photo of Kevin De Bruyne is personal data under current privacy legislation. It also falls under portrait law. This means that the person portrayed not only has to give his/her permission to take the picture, but also has to specifically allow its use. A double permission, in other words.
And for the creative marketeers among us: recognisable does not mean that the face has to be depicted in all its sharpness. So even a shadow drawing of Axel Witsel will fall under portrait rights…
Are there no exceptions to this? Fortunately, there are for real football fans. In principle, public figures (e.g. politicians, singers, but also sports stars, etc.) do not need to give prior permission. After all, the right to information applies here, provided that a few conditions are complied with. For example, the picture of a public person must have an informative purpose (so no commercial use) and it may not violate the right to respect for private life.
Selling cakes with pictures of our Red Devils on them? Forget it …
Official sponsors pay a lot of money to be associated with our national pride. But is it not a feature of this heroism that we all want to associate with them a little? Tous ensemble, remember?
Hooking up, or guerrilla marketing, is the phenomenon whereby you try to associate an advertising campaign with an event without, however, having a sponsor agreement with the organiser. Not nice for the sponsor and the organiser, of course, as it affects the economic value of their deal.
Impersonating a sponsor when you are not is therefore considered unsportsmanlike. But unsporting is not necessarily illegal. However, excesses are also dealt with legally: remember the Bavaria girls at the World Cup in South Africa sponsored by Budweiser? They were plucked from the stands in their dresses.
As a trademark owner, the KBVB has far-reaching rights. Infringements are easily made by similar signs, but also by similar signs, and can be fined heavily! Playing with associations is playing with fire.
On the other hand, it is allowed to use a trademark when necessary as a reference. Like all rights, it must be exercised reasonably, which means according to honest practices in industry and commerce.
Do you have doubts about the risks of the campaign you are launching? Talk it over with our specialists via firstname.lastname@example.org.
Written by Kris Seyen, Partner theJurists