BY André J Maré
intellectual property (IP)
The Little Master goes to court
The Little Master himself, Sachin Tendulkar, is heading to court in Australia against sporting goods manufacturer Spartan.
For some context: Tendulkar retired from international cricket shortly after winning the 2011 World Cup. Even in retirement, Tendulkar remains by some distance, the most revered cricketer to ever play the game and the famous Matthew Hayden quote “I have seen God. He bats at no. 4 for India in tests” remains as true today as it did in 1998 when he first uttered those words. Tendulkar features at number 11 in Forbes’ Highest-Paid Retired Athletes list and was estimated to be worth around USD160-million in 2013.
It stands to reason that Tendulkar would look to commercially gain from the extensive goodwill and reputation he enjoys as a result of his fame and success. It seems that he has done so through a dedicated sports management team, SRT Sports management.
Tendulkar entered into a worldwide sponsorship and endorsement deal with Spartan in 2016. Various products have been marketed using Tendulkar’s name and image including cricket bats and various articles of clothing. Tendulkar further appeared at promotional events for Spartan in India and the United Kingdom.
From reports, the relationship soured when Spartan failed to pay Tendulkar the endorsement fees and royalties that were due to him under the commercial contracts. He terminated the arrangement with Spartan but the company ignored the termination and continued to make unauthorised use of his name and likeness.
According to a media release from Tendulkar’s lawyers, he will be seeking “substantial damages” understood to be somewhere between AUD2-million and AUD3-million. He is further seeking other remedies, including the cancellation of trade marks featuring Tendulkar’s silhouette which was registered by one of the Spartan companies. It appears that this may be the offending trade mark (personally, I would have gone with Sachin’s cover drive):
Endorsement deals by celebrities and sport stars (so-called “influencers”) remain big business. The business appears to have evolved slightly from the conventional endorsement scenario like in the Tendulkar example, to more localised celebrities who appear to influence a smaller group of people, but to a higher degree. This type of endorsement arrangement is called influencer marketing. This includes social media campaigns by advertisers and there are even rumours that it popped up in some recent South African elections.
Image rights have been described in academic literature as: “…the ability of an individual to exclusively control the commercial use of his name, physical/pictorial image, reputation, identity, voice, personality, signature, initials or nickname in the advertisements, marketing and all other forms of media…”
In practice, the term “image rights” refers more broadly to the bundle of rights that allows an individual to authorise or prevent the use of his or her “identity”. These may include various personality and intellectual property rights, depending on the specific arrangement.
As can be seen in the Tendulkar case, the relationship does not always have a happy ending.
Spartan Sports is contracted with a number of other current and retired crickets, referred to as ambassadors, including Wasin Akram, David Warner, Chris Gayle, Michal Clarke and a rival for Tendulkar’s throne, MS Dhoni. The company further seems to be involved with Kevin Pietersen and his Rhino conservation foundation SORAI. One can only imagine that the potential negative publicity around the case may spill back to have an influence on the “brands” of these “ambassadors”. I am therefore certain they will all be watching the case with great interest.
The case is expected to be heard towards the end of 2019.
Please contact ENSafrica’s IP team for advice on contractual structures between corporates and celebrity influencers.
André J Maré
executive | IP
+27 82 440 1517