Ivan Ojakol
Joshua Cheptegei, Peruth Chemutai and Jacob Kiplimo’s success at the 2021 Tokyo Olympics brought unbridled joy to Ugandans as all and sundry basked in the glory of their great fetes with congratulatory messages, especially on social media.
In typical ‘success has many fathers’ style, at the centre of these congratulatory messages were the images of three stars cementing the iconic status of these champions and catapulting them to celebrity status.
They are now global brands, Joshua Cheptegei had already become one.
These congratulatory messages, especially those that were emblazoned with the stars’ images were for lack of a better word exploitation of the stars' image rights and brands perhaps inadvertently for some or even intentionally for many corporate companies.
This attracted some backlash from local sports administrators in Uganda on twitter with them accusing corporate companies of many a time free-riding whenever the Olympics come around except those that had officially come on board as partners to the Uganda Olympic Committee.
There were even threats of legal action.
A strong brand can potentially generate good revenue even for athletes, the same way they work for musicians, actors et al.
What an athlete like Joshua Cheptegei simply needs is to realize that he is a brand and develop a thorough brand strategy.
This brand value has been realised by many global sports superstars and they have devised a brand strategy through trademark law.
It is this brand value that many corporate organisations want to tap into by associating themselves with Joshua Cheptegei, a world record holder in the 5000m and 10,000m distances and now Olympic Gold and silver medalist at both distances-undoubtedly, his brand is a transcendent one with a global reach.
Any corporate company would want to grow their brand through aligning themselves with such a top athlete.
Successful sportspeople come with extraordinary star power that can live on beyond their years of actively playing sports. As we all know the shelf life of sportsmen is quite short.
Therefore, their sports brands need to be protected to enable them to reap from their talents years later after their retirement.
From David Beckham to Lionel Messi to Christiano Ronaldo, sports celebrities own a plethora of trademarks that have enabled them to commercialise their identity and images.
The value in registering a trademark (sometimes service mark) is that it gives the owner the exclusive rights to exploit the mark in relation to the goods and services for which it is registered.
Some of these trademark registrations have been of the names of sports greats, Messi is one such example.
Gareth Bale had obtained trademark registration for his ‘eleven of hearts’ goal celebration which he for some unknown reason subsequently revoked-perhaps this is inspiration enough for Cheptegei to trademark his 'Silverback celebration' where he mimics Uganda’s mountain gorillas by drawing out his chest and thumping it after a victory.
Uganda has a sufficient trademark legal regime in the Trademarks Act, 2010 and its attendant Regulations; Uganda is also a party to the Banjul Protocol that establishes the African Regional Intellectual Property Organization (ARIPO) through which trademark protection can be obtained in another twelve or so African countries.
This trademark protection will enable our sporting heroes to benefit from their brands by preventing unauthorised use and cashing in on licensing deals.
Image Rights is another area of the law through which sports stars can exploit their brand value.
The two areas; trademarks and image rights are more or less intertwined-trademark protection protects a sportsman's image and, in some jurisdictions, Image Rights are part of Trademark law, in others, there is separate legislation catering for image rights and in those like the U.K, it has been developed through Common Law.
Uganda does not have legislation on Image Rights but has case law that has pronounced itself on this issue.
In Winnie Asege V Opportunity Bank and Another HCCS No. 756 of 2013, the Court defined Image Rights as ‘Personality Rights’- ‘the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity.’
The Court added that it is ‘the right of publicity’ which gives one the power to keep one’s image from being exploited commercially without permission or compensation and it is also ‘the right to be left alone’.
The trend has been for sports stars to have their Image Rights managed by Image Rights Companies and for professional footballers to contract their Image Rights separately from their employment contracts.
Mohammed Salah not so long ago cast the spotlight on the legal controversy around image rights in a dispute between him and the Egyptian Football Federation where the latter used the former’s image to endorse a telecommunication company without his consent.
The federation initially claimed that they had the right to use Salah’s image but eventually, Mohammed Salah prevailed over them.
This Salah dispute begs the question of whether our sports stars ever license their image rights to local sports federations when we see them appear on billboards and TV commercials endorsing particular sponsors of the sports federations.
I hope Joshua Cheptegei is alive to the power of his image especially since he is managed by astute professionals and has taken steps to find a way of protecting and reaping from it especially by fighting off its unauthorised use.
If he has not, I recommend this article to him.
We hope the new Sports Act if it finally sees the light of day will comprehensively address the Image Rights subject.
But even if it doesn't, our sports stars should seek the guidance of experts to enable them effectively protect and benefit from their images way into their old age like the Michael Jordan's of this world.
Just maybe, this could be the solution to the misery and destitution that many of our sports heroes of yesteryear descend into when the sun sets on their sports careers.
The author is a sports lawyer.
