Trademark and Publicity Rights of Athletes

Introduction
One of the most important characteristics possessed by an athlete is the athlete’s name, image, identity and the athlete’s brand value as a trademark[1].  Studies have shown that such assets are of great value, lasting longer than the lifep of the athlete himself[2].  Some athletes are being considered as ‘god’ by their fans even after they retire or following their death ([3].  When there is great value existing, there is every chance that some companies can make use the good name of the athlete for wrongful association and likeness.
Athlete image rights is an aspect of sports laws that affects several stakeholders including athletes, leagues, advertisers, teams, professional bodies, public, etc[4].  Sports laws involves several legal issues such as labor laws, employment laws, contract laws, real estate laws, tort laws, competition laws, civil laws, private laws, and most importantly intellectual property rights laws[5].  Some of the important aspects of intellectual property rights laws that would be involved in sports laws include copyrights, trademarks and rights to publicity[6].  As patents are really not of much importance in sports (due to the poor chance for technical innovation in the field), Intellectual property rights matters have not been of much interest in sports[7].  However, looking at the seriousness of several cases of abuse of the athlete’s image and trademark rights, it has been important to classify it as a separate branch of law, giving opportunities to lawyers and other legal practitioners to explore new challenges in another avenue.

An athlete’s image rights are that marketable identity or any other mark, symbol, etc, which can help identify the athlete uniquely.   This may include the athletes name, nickname, image, portrait, performances, actions, character, goodwill, personality, traits, biography, trademarks, etc[8].  It is important to note that the athlete’s images are owned by the athlete and any individual is prohibited from using them without the exclusive consent of the athlete[9].  Even the sponsors and the Sports Federations have the duty to use the image of the athlete only after seeking permission of the athlete[10].  There are several circumstances in which the image rights of the athlete would be affected.  Especially, the image rights involve ownership and certain other organizations may misuse the name of the athlete to associate their product (through likeness and confusing the public) and increase sales.  There may be several situations in which an athlete’s name or image would be misused.  Some of them include:-
Announcing the victory of an athlete in a press conference
Using the name or image of the athlete in a advertisement
Creating and running a congratulatory advertisement for the athlete
Running an advertisement in which the athlete’s image would be associated with the success of the company and then placing a statement claiming the same[11]
All these are clearly situations in which the image rights of the athletes are violated and need to be addressed.  Before using the name of the athlete or the image of the athlete, the organization needs to take the permission or consent of the athlete for using the name or image and use it for the purpose only mentioned[12].  Any use of the athlete’s name or image beyond the purpose of consent would be considered as a violation[13].
There may also be situations in which an athlete would like to endorse for a company that is a rival of the sponsors of the national sports organization[14].  In such a situation, it would be advisable to look at the contract the national sports organization has with the athlete and the terms and conditions regarding endorsement and sponsorships.  Some sports organizations may permit the athlete to sign up contracts without any restrictions whereas other would require certain conditions to be followed[15].
In several countries, the images of the athletes and other popular personalities are protected to a certain extent.  The image of the athlete cannot be utilized without the informed consent of the athlete[16].  One of the fair use situations in which the image of the athlete can be utilized is for the purpose of news reporting[17].  Even if the image is utilized to report a historical event, it would be considered as fair use and not a violation (as it has been done purely for non-commercial purposes).  However, it is also important that the image being used does not cause any violation of the athlete, morally.  There may also be situations in which the image of the athlete although be utilized for fair purposes such as news reporting, historical event coverage, non-commercial purposes, etc, be described as use for advertisement, which may happen unintentionally[18].  The courts have provided varying decisions in this regard.
 
Cases of protection of Publicity rights of athletes
Let us now look at a few cases concerning the misuse of private images by companies for unlawfully gaining publicity using the images of athletes.  In each case, it is important to determine the credentials, facts and evidence, before giving a vital judgment.  Various aspects of law would imply including intellectual property rights, advertisement law, competition law, antitrust laws, criminal laws, etc.
 
A. Liu Xiang case 2004
Liu Xiang was a Chinese male athlete who had won the 2004 Olympic gold in a hurdles event of athletics at Athens.  A shopping magazine by name “Guide for Elaborate Shopping” in the year 2004 came out with a special edition and included the image of Liu, who was clearing the hurdle.  Beneath the hurdle was an image of the company stores with an intention of attracting the customers.  The original background of the athletic setting was replaced with a red color which represented the company.  The Olympic logos and the logos on Liu’s shoes were also removed[19].  It was obvious that the picture was a modification done to suit corporate and advertisement interests.  The Chinese civil law clearly prohibits using a person’s image to gain for commercial purposes without the consent of the original owner (Article 100).  It permits certain fair use, such as reporting of news events, historical events, private circulation, etc.  Liu sued the company not only for damages, but also for injunction from further misuse of the images and a public apology.  Initially the Chinese lower court ruled in favor of the publisher, saying that insertion of the picture was done to demonstrate the retrospective events of the year 2004.  Liu then went to an intermediate court in Beijing which granted the case to Liu based on the facts of the case.  The court held that the magazine could not modify the background, footwear and the hurdles located in the image to suit their commercial interests.  Looking at the image, it was difficult to say that it was inserted exclusively for news reporting.  The intermediate court used the Rule 139 of the Supreme Court to deliver its verdict.  According to the civil laws of China, the act of modifying the image and inserting it, constitute violation, as it was meant to suit commercial interests.  The court also took a deep look at article 13 of the Advertising laws to demonstrate the divergences between an image which was meant for advertisement and one which was not meant for advertisement[20].  The magazine company had said that they had no intention of using the picture or the sake of advertising.  However, the court said that in spite of not having an intention for advertisement, this did not constitute a non-violation.  Clearly, the portrait rights of the individual were misused and article 13 of the advertisement laws abused[21].  The publisher of the picture could have made modifications to the picture in such a way that it met the criteria to be classified as meant for news reporting and not for advertisement.  The picture and the advertisement were placed in such a way that the consumers would get confused and associate the success of Liu Xiang to the advertisement company.  This would result in increased sales.  The company was asked to pay a huge sum to Liu Xiang as compensation for damages[22].
For ensuring that justice was delivered to Liu Xiang, the court employed two separate analyses which may have not been related to each other.  Firstly, the court tried to determine if the company use of Xiang’s portrait had met with any fair use criteria laid down under the advertisement laws.  The use of the image for news reporting was initially felt.  However, observing the image was modified in such a way that it would help meets the advertisement requirements of the company; it was found that no fair use clause had existed[23].  The background and other aspects of the picture had been changed, which did not permit the excuse of fair use criteria.  The court also tried to determine if the portrait caused confusion amongst the general public for being associated with Xiang’s image.  The court found that the general public was at the risk of getting confused and associating the company with Xiang’s success[24].  The court in this way tried to determine fair use and infringement and hence provide justice and a comprehensive understanding of this case.  This case had created a revolution in China as it was one of the few cases which really examined the thoroughness of using the fair use clause for news reporting by several advertisements.  The lower court’s verdict was also thoroughly reexamined and it clearly found to be unjustified for Liu Xiang.
The court really found a likeness of the public being confused and associating the company with Xiang’s success.  The company was wrongly trying to use the modified picture in order to create confusion in the minds of the public and illegitimately gaining[25].  The intermediary court thoroughly analyzed if any fair use criteria existed and also determined the extent of infringement.  The court found that the advertisement could bring in harm to the name of Liu Xiang and hence could not be permitted by law.  The company had to pay huge damages to the athlete and also was ordered to stop issuing copies of the modified advertisement[26].  This was a revolution case in the history of Chinese judiciary.
 
B. The Tiger Woods Case
Tiger Wood is an athlete who has excelled in the field of professional sports.  He has endorsed for several company products including Nike, Accenture and Buick.  Tiger Woods has generated a good name for him and through endorsements for various companies has provided a connecting trust with the customers and his fans ensuring that they are able to choose a product or service from a trusted company.  Many companies have boosted their sales following high value endorsement with Tiger Woods.  The Nike Company, which initially did not have any role in golf, had expanded their company by about 10 % in one year, due to their association with Tiger Woods[27].  When Tiger Woods won the 2000 US Open Golf Tournament, the company’s golf website was the busiest in the world.  Nike’s company analysis clearly suggests that sportspersons can play a huge role in marketing the company products.  However, there rogue companies who also try to steal the image of the professional sportsperson and use it illegitimately, damaging the name of the athlete through confusion, association, likeness, dilution and spoiling the good name.  Hence, it is the duty of several stakeholders including the government, policymakers, agents, managers, athletes, legal firms, judiciary, advocates, company having legitimate endorsements with popular athletes, and fans, to prevent misuse of the athletes and report cases of misuse to the authorities.  Several leagues across the world including the NFL, MLB, NASCAR, Formula 1, IPL, NHL, NBA, NCCA, EUFA, etc, have tried to promote the good names of the athletes in an appropriate way and also ensure protection from misuse and abuse[28].
Tiger Wood’s licensing agency ETW corporation had a conflict with Jireh Publishing agency for a painting titled the “Masters of Augusta” created in 1998, following his victory at the Masters in Augusta Georgia in 1997.  Rick Rush created several limited paintings of the “Master of Augusta”.  The painting depicted Tiger Woods in various positions and various golfing superstars were looking from behind and encouraging him in a setting which seemed to be the Augusta National Clubhouse[29].  ETW was completed raged with the paintings created by Rick Rush of Jireh Publishing.  They brought forward several cases against Jireh for trademark violation (of Tiger Woods name which had obtained a trademark status), unfair competition, destruction of the athlete’s right to privacy, dilution of the trademark of Tiger Woods, inappropriate advertisements, right of publicity infringement, deceptive trade practices that did not meet the criteria laid in the Ohio law codes, etc[30].  Jireh provided a defense that ETW was infringing on their right to freedom of expression (clearly mentioned under the First Amendment of the US Constitution).  Jireh’s paintings were permitted by the court for being original creations.  The court said that people had the right to expression and there were certain social interests, which was having greater weight to Tiger Wood’s right to publicity.  The First Amendment in this case was used as a reason to permit the creativity and expression of the artist[31].
However, the matter of concern for Tiger Woods was the use of his trademark that was creating confusion amongst the people that he was associated with the Jireh Company and increasing the sales of their products[32].  The consumers would get confused that the products for sale were the endorsed by Tiger Woods and hence purchase them.  A person could have bought the painting because it signified the victory of Tiger Woods in the 1997 Augusta Tournament[33].  Jireh said that the use of the Tiger Woods trademark was not intentional but incidental in this case[34].
The Court also felt that the public image of Tiger Woods was not affected in anyway with the paintings.  Tiger Wood at that time endorsed for several companies and none were affected by the paintings.  Rush introduced an original product in the market which was fully justified as it was an original expression and did not interfere with the any other endorsement of Tiger Woods nor destroyed the public image of Tiger Woods[35].  The sportsman himself did not exploit the use of similar artistic creations in the market and hence was justified (as there was no competition from the same segment).  The creations by Jireh publishing was permitted and legally had been declared as an original creation[36].  Rush was in this case was victorious for coming up with a legitimate idea and avoiding competition with legitimate users of the Tiger Wood’s trademark in the same area (that is paintings).  Further examination of Jireh’s paintings suggest that people could have even bought them for the sake for celebrating golf or the Masters Tournament at Augusta, and not to celebrate Tiger Woods win specifically.  The court easily felt that in this case the likeness of public confusion regarding the association of the paintings was not apparent and hence did not amount to violation[37].  Rick Rush created the images of matters that were effectively in the public domain.  He did not try to dilute the name of Tiger Woods nor confuse the public[38].
 
C. Mike Bibby of the Sacramento Kings case
Mike Bibby had an official team sponsor for Folsom automobile mall and was their spokesperson.  After his deal with Folsom ended, he joined Roseville auto mall and took up several advertisements for the company.  He took a dealership effort known as “King-sized deals” with the company[39].  However, Folsom objected to this because Roseville was trying to use the name of the team and in this way was trying to associate itself with Folsom.  Folsom still had a deal with Sacramento Kings, and as a response to the Roseville ad, posted a counter advertisement with several other Sacramento Kings and included Mike’s name also (Mike Mitchell from Ups Advertisement, an associate of Folsom).  Folsom also clarified in it’s add that the word “Mike’ stood for ‘Mike Mitchell’ and not ‘Mike Bibby’.  However, Mike Bibby was offended by the ad and hence requested Folsom to withdraw it (although the company had placed a disclaimer in small fonts visible by using a magnifying glass held against the screen)[40].  In the advertisement that Roseville utilized, it was found that the apparel and the uniform used was very similar to that of the Sacramento Kings.  Roseville did not take permission from the NBA or the Sacramento Kings and hence had created several violations under the Lanham’s Act and the trademark act.  On the other hand, Folsom had also committed a violation by misusing the name of Mike Bibby and infringed his image rights.  This was a clear case in which intense competition and unhealthy practices between corporate had created problems for athletes in their sports life[41].
 
Rights of sporting bodies
Tiger Woods is a professional golfer and is considered as an independent contractor providing certain professional services under his name to the professional agency PGA Tour.  This agency as a league organizes sporting events throughout the world and can use the name of Tiger Woods for their benefit and to promote sports.  Depending on the type of sporting bodies and the type of sports, each organization would be having varying rights for the use of the athlete’s name[42].  Each athlete or golfer who is a contractor for the professional agency would be required to play in an optimum number of events.  The professional body also has the right to sign television deals, promotions, media rights and use the name of the athlete.  For a particular event, there are 2 types of sponsors, title sponsors and corporate sponsors.  The title sponsors name would feature in the title of the event, for example “the 2002 Fosters Australian Grand Prix’ or the “Wills 1996 World Cup”, sponsored by Fosters and Wills, respectively.  There is certain larger amount of licensing fee involved to be paid to become a title sponsor in comparison to a corporate sponsor.  A corporate sponsor would be one of the many official sponsors for the event.  The sponsors can utilize the name of the professional sporting body but is prevented from using the name of the athletes without their consent[43].  Athletes may have separate sponsorships with corporate, which may or may not have deals with the larger professional bodies.  They can use the name of the athlete in their advertisements, but are prevented from using the name of the professional body.  In case, the corporate has a deal with the professional body, they can utilize the name of the professional body and also promote the athlete’s name side by side.  In the case of any violation and conflict existing, the Lanham’s Act can be utilized to provide a legal solution[44].
In team events there may be specific problems, as one athlete may be more popular than the other, and certain teams may be well-known compared to their individual players.  The NBA for instance, has signed group contracts and uniform player agreements ([45].  All players are considered to be equal in the NBA and through deals with the entire league; teams and the players are promoted, equally.  All the profits made through advertisements, promotions and sponsorships are distributed equally through the teams.  As the players are considered to be equally, and are promoted equally, there are greater chances of the entire league being promoted than the individual players themselves.  Even new comers are promoted equally as general players.  The companies that sign deals with the NBA are permitted to utilize their association with the NBA for marketing of the product; however, the NBA would monitor the use of its name during the marketing.  The NBA has its own division namely NBA Properties to create and market memorabilia for its fans.  These include replica, t-shirts, apparels, souvenirs, goodies, etc, of various teams and players.  Several players in the NBA have individual sponsors with separate companies, and they have to seek their permission whilst using the other parties’ names in advertisements[46].  For instance, when one NBA player has a sponsorship with deal with a company, then he has to seek the NBA and the team consent for using the NBA and the team name in advertisements with the individual company.  On the other hand, for the official sponsors, the athlete could use the team uniform and the name of the league[47].
Rights of the athlete
There are certain rights possessed by every individual.  Every individual has the right to use his or her name for the sake of profit.  There could be the use of name, likeness, association, traits, nicknames, images, certain actions, performances, etc[48].
When companies are misusing athlete’s image rights, then broadly two types of rights may be abused, namely right to publicity and right to privacy.  The right to publicity would ensure that only consented parties can use the image of the athlete for commercial purposes.  The right to privacy means ensuring protection of one’s personal information and preventing others from intruding on such information[49].  It was as early as the late 19th century that the person’s right to publicity was recognized by the US Supreme Court.  Initially, the rights to protection of image of a person were a common law aspect that developed following several case of misuse of people’s names or likeness[50].
One of the first cases was the Edison Vs. Edison Polyform Company (1907) case, in which Thomas Elva Edison identified a pain relief formula and called it as ‘Polyform’.  He gave the rights of licensing to a certain company.  However, after passage of the license from several hands, it landed with a company which called itself as ‘Edison Polyform’ and which sold the product with an image of Edison himself[51].  The product also contained certain words supposedly narrated by Edison as a certification.  The matter hand moved to a New Jersey, in which Thomas Edison said that he did not give permission to the company to use his name, image or words.  The court said that a person’s name is also the person’s property, and this would also include certain unique features of the individual.  The individual can make use or authorize others to use his name and other features.  The court passed an order to prevent the New Jersey Company from further misusing the inventor’s name, words and image[52].
In the 20th century, several cases where initiated against companies that tried to misuse the name and other features of the popular persons.  However, earlier many courts also tried to balance out the rights of the public to use the name and the image for news reporting[53].  One such case was the 1941 case involving the football player David O’Brien whose name was used to publicize beer.  Although O’Brien did not consent to such use, the court permitted so as the athlete had attained a good name[54].
The first state to criminalize the misuse of people’s images was New York which delivered both criminal and civil punishment.  California also went forward and prevented the misuse of the names of living and dead people for the sake of commercial purposes.  Lanham’s Act specifically deals with the misuse of names such as in false endorsement claims in order to create confusion in the minds of the public and gain commercially[55].
Rights of the image are al[56]so protected by trademark law, which aims to protect against misuse of registered names by creating confusion or diluting the registered trademark.  Several popular athletes and artists have registered their names as trademarks in order to ensure that genuine sponsors can use their names and others are prevented from misuse.
In the state of Florida, the use of a person’s name that cannot be recognized is permitted under the law.  The law also permits the use of an image of a person for certain reasons that have been dead for over 40 years.
The First Amendment of the Constitution aims to protect freedom of expression and ideas for the sake of non-commercial purposes.  The members of the public are free to use an athletes name for the sake o news reporting, coverage of historical events, critics, non-commercial purposes, etc[57].  This is one of the few defenses several companies have used when being pulled up for using the name and image of the athlete for publicity.  Companies claim that they are using the name only for news reporting or non-commercial purposes.  However, the line between using the name and age of the athlete for commercial and non-commercial purposes is very thin, and the courts have to subject such cases to thorough examination.  The courts have argued that it is very important to protect the good name and image of the athletes for several reasons.  This may include:-
·         Protection of one’s image is a personal right and ensure would ensure protection of personal achievements for the public
·         The athlete can endorse and commercially exploit his or her name
·         To ensure better control of one’s name and image in the public
·         The public would also want to be guided by the athlete is selecting the items that he/she uses or likes (through endorsements)
·         Preventing any associations with a good public figures and unwanted products and services[58].
In the year 1953, a 2nd division US court tried to distinguish between the rights to privacy and the publicity rights in the case Haelan Laboratories vs. Topps Chewing Gum.  The plaintiff had an exclusive right to use the athlete’s name for chewing gum marketing[59].  However, the defendant also entered into an agreement to use the athlete’s name for the same purpose.  The court said that the publicity rights of athlete was in this case far apart and needed to be distinguished from the right to privacy.  Athletes were most often using their names for monetary benefits and hence could not be classified as privacy issues[60].
In courts, in cases involving infringement of the rights of publicity, 4 elements are taken into consideration namely taking, identification, benefit to the company using the name, and not taking permission to use the name[61].  Taking involves using another person name in order to obtain intangible benefits to the person using the name.  Identification means clearly identifying the person who name is being used in the form of names, nicknames, images, actions, performances, words, etc.  The person using the name of the athlete would be doing it to gain a benefit or a potential benefit.  The process of using the name should be done without the consent or the permission of the athlete[62].  In courts, it the following 4 elements are proved, then it would be considered as infringement, and the infringer would have to pay damages to the athlete and stop using the name again.
The courts or the legislation have avoided mentioning the activities that would constitute infringement of the right to publicity.  Creating such a list would result only in restricted actions being considered as infringement, and companies may find new ways of using the athlete’s names for commercial gain[63].  In the case Abdul-Jabbar vs. General Motors (1996), the case brought about 9 ways of infringing identity, and the courts decided to generalize and draw a boundary about what constituted infringement rather than permitting the companies to come out with new ways of breaking identity issues[64].
Today identity issues merely do not include infringing upon the name and image of the athlete but also using any other thing which can include the personal identity of the athlete.  In many cases, although the face and other remarkable personal identifiers may not be clear, the courts may go by other personal identifiers including unique style, nicknames, certain actions, etc[65].  For example in the case Newcombe vs. Adolf Coors, the defendant had published a picture of a baseball game containing a person similar to the baseball pitcher Donald Newcombe.  The character in the picture had wrinkles, a similar team uniform, jersey number, and took a stance similar to Donald Newcombe.  The court took a close look at the character in the picture and compared it to the original Donald Newcombe.  Although the character was similar, the court did not grant the case to the plaintiff on the grounds that the material facts did not fully be specific to Donald Newcombe (insufficient)[66].
 
Effective management of trademark and image rights of athletes
The athlete is a celebrity and has a brand by himself.  It is not only important to protect the publicity and image rights of the athlete but also to ensure effective management of the trademark and the publicity of the athlete and to ensure that the athlete can gain monetarily.  The athlete should preferable hand over the process of licensing of all the intellectual property rights associated to an organization that can do a professional job, just in the manner Tiger Woods has handed over licensing issues to ETW Corporation (that was associated with his father)[67].  The organization should have specialization in trademarks, copyrights, image rights, competitive laws, etc.  Several aspects including the trademark of the athlete, web site, domain name, etc, need to be effectively managed[68].
The endorsement of advertisements would influence the public positively and hence athletes need to make a decision based on the credentials as to which organization they would be endorsing for.  Advertisements can also be positive for the athlete image itself as good companies can boost the name of the athlete and provide huge monetary benefits.  Brands that are endorsed by the athletes would be universally accepted, recognized and be given a higher brand value.  It would also appeal to the emotions and feelings of the customers[69].
As Tiger Woods endorsement for the Nike Golf brand has provided huge benefits for the sales of the company, a partnership between the athlete and the company can be mutually beneficial.  Many of the athletes are turning out to be millionaires by endorsing brands or popular companies.  The internet has also changed the manner in which the public can view and access the brands endorsed by the athletes.  However, the potential for misuse and abuse also exists with the use o technology accessible such as the internet.  This can turn out to be challenges for intellectual property rights professionals such as those handling trademark, publicity and copyright issues.
The license agreements between the companies and the athletes should be structured keeping in mind several issues such as jurisdiction, restrictions, products, term of use, exclusiveness, etc.  There may also be outright sales of the intellectual property of the athlete (such as the case of Muhammad Ali and George Foreman)[70].
The endorsements of the athletes need to also keep in mind the endorsements of the sports team and the professional body.  Various teams and sporting bodies impose restrictions on endorsements signed by athletes[71].  Some athletes are restricted to sign endorsements to the opponents of endorsements signed by the national board and the professional body.  A greater amount of interaction and agreement between the athlete and the national bodies are required to ensure that no conflicting interest exists[72].
Conclusion
Overall commercial and legitimate use of the athlete’s image and trademark can be a win-win situation for several parties including the athlete, the sporting bodies, the companies and the general public.  The athlete can speak with the general public and can benefit hugely monetarily.  The sporting bodies can have greater popularity as the athletes would have already popularized the league.  The companies can endorse athletes and ensure that the popularity of the athlete would be extended through fruitful advertisements and communications with the general public.  The public on the other hand can gain immensely as they would know the likeness of the athlete and accordingly use the products of their heroes. They would also seek greater entertainment for themselves through the fan-following.
However, the misuse of athlete’s rights and images has resulted in several distortions especially to the good name of athletes, professional sporting bodies, companies that are genuinely associated with athletes, etc.  To ensure greater prevention of abuse, laws should be more stringent and ensure greater protection and misuse of such rights.  Effective use of statues from various aspects of laws including competition law, tort laws, contract laws, criminal laws, IP laws, etc, need to be utilized more effectively in such cases.  Besides, the law practitioner should have an idea of the past cases in sport issues and extent usage in future cases.  The government and the legislation should also adopt statutes and policies in an effort to reduce any misuse of athlete’s public image as it is concern that would affect the people ultimate (through false association and creating confusion).  Protection of the athlete’s images should be done considering both the moral and the economic interests of the athletes.
At the same time it is essential to permit fair use of the athletes.  Some of the situations in which fair use would be permitted include news reporting, bringing historical events to light, non-commercial purposes, research and educational purposes, use of the name of unrecognized persons, private use, etc.  To justify use for such purposes would require a lot of evidence to be proved in the courts.
At the same time, it is essential to educate and create awareness in the public regarding the use of athlete’s images and trademarks by commercial organizations.  The public should not blindly follow the advertisements which may not be genuine.  They should try to determine the nature of the product, the company making them and the athlete’s likeness of the product.  Any doubt about the genuineness of the advertisement should be informed to the authorities in order to create a healthy environment for the public, athletes and the corporate.
Also a greater role of IP in the field of sports needs to be developed.  Sports laws by itself have developed as a separate branch of law, in which IP would play a major role[73].  Use of IP in the field of sports need to be further researched and newer legal solutions to practical problems need to be developed and implemented as legislations or used in courts.
 
 
 
References
Blackshaw, I.S. Et al 2005, ‘Sports Image Rights in Europe’, Cambridge: Cambridge University Press.
 
Conteh, AJ 2006, ‘The Right of Publicity in Sports: Athletic and Economic Competition’, DePaul University College of Law – Laws LJ, vol. 3, no. 2. http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawslj/Volume%203,%20Issue%202%20Current%20Issue/Right%20of%20Publicity%20by%20Conteh.pdf
 
Epstein, A. 2002. Sports Laws, US: Cengage Learning. http://books.google.co.in/books?id=WrH89Nm0tbUC&printsec=frontcover&dq=sports+law#PPP1,M1
 
Kangxin Partners PC 2008, Publicity and image rights, World Trademark Review, 69-71. http://www.worldtrademarkreview.com/Issues/Article.ashx?g=e3e4ab33-21fc-494a-a6fb-5d0a88d26fd7
 
Link, M. 2003. Tiger Woods loses at Augusta: courts say: “Rick Rush gets the green jacket” ETW corp v. Jireh publishing, inc, DePaul Journal of Sports Law, 102-108. http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawslj/Volume%201,%20Issue%201/Link%20Tiger%20Woods%20Loses%20at%20Augusta.pdf
Madow, M. 1993, ‘Private Ownership of Public Image: Popular Culture’, California Law Review, vol. 81, no. 125. http://cyber.law.harvard.edu/IPCoop/93mado2.html
 
Roesler, M. 2008, ‘The Use of an Athlete’s Image in Communication’, CMG Worldwide, viewed 22 February 2009. http://www.markroesler.com/powerpoint/Babe%20Ruth-Brands-Rio.pps
 
Rowland, BM 2002, ‘An athlete’s right of publicity. (Entertainment, Arts and Sports Law)’, Florida Bar Journal. http://goliath.ecnext.com/coms2/summary_0199-2201904_ITM
 
Ward. B.A. 2008, ‘Athlete Image Rights’, Sports Intelligence Research Supportive, viewed 22 February 2009.  http://www.sirc.ca/Seminar_Series/documents/Athlete%20Image%20Rights%20-%20BWard.ppt
 
Cases
·         Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996)
·         Edison v. Edison Polyform Mfg. Co., 67 A. 392 (N.J. Ch. 1907)
·         ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003),
·         Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953)
·         Lui Xiang Vs. Zhongyou Department Store (2005).
·         Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998)
[1] Conteh, AJ 2006, ‘The Right of Publicity in Sports: Athletic and Economic Competition’, DePaul University College of Law – Laws LJ, vol. 3, no. 2.
[2] Rowland, BM 2002, ‘An athlete’s right of publicity. (Entertainment, Arts and Sports Law)’, Florida Bar Journal.
[3] IBID
[4] Epstein, A. 2002. Sports Laws, US: Cengage Learning.
[5] IBID
[6] Kangxin Partners PC 2008, Publicity and image rights viewed 22 February 2009.
[7] IBID
[8] Ward. B.A. 2008, ‘Athlete Image Rights’, SIRC, viewed 22 February 2009.
[9] Conteh, AJ 2006, ‘The Right of Publicity in Sports: Athletic and Economic Competition’, DePaul University College of Law – Laws LJ, vol. 3, no. 2.
[10] Ward. B.A. 2008, ‘Athlete Image Rights’, SIRC, viewed 22 February 2009.
[11] IBID
[12] Conteh, AJ 2006, ‘The Right of Publicity in Sports: Athletic and Economic Competition’, DePaul University College of Law – Laws LJ, vol. 3, no. 2.
[13] Ward. B.A. 2008, ‘Athlete Image Rights’, SIRC, viewed 22 February 2009.
[14] IBID
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