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By Dickson Jere
Who owns the jersey that was worn by the 2012 Afcon champions – Zambia? This question has triggered a very healthy debate in the country. It is good that issues of Intellectual Property (IP) rights are now becoming part of our debate.
So, the answer to the question is twofold.
Firstly, as any lawyer will tell you, the answer is found in the contract between the sports wear company Nike and the Football Association of Zambia (FAZ). Ordinarily, in most of such contracts, the IP rights remain with the sportswear company like Nike but the contract may provide something else. That is the easy answer to the question of ownership of the jersey.
Secondly, the answer can also be very complicated. Four different pieces of legislation comes into play and I will briefly touch on them below.
1. Trademark – the FAZ logos, shapes like the Nike mark and all that on the jersey will be protected under the trademark law. In Zambia, it will be the Trade Mark Act, Chapter 400 of the Laws of Zambia. For them to be protected, they must be registered as such at PACRA.
2. Industrial Design – the design of that jersey, the colors, patterns, stripes, shape, lines, ornament and all, will be protected under the design law. In Zambia, it will be under the Industrial Designs Act No 22 of 2016. I have been reliably informed that the jersey was designed by former FAZ President and our football icon Kalusha Bwalya. So, on face value he can claim the design rights but did he register it with PACRA? Or he handed it over to Nike? In short, the design must be registered in order to be protected.
3. Copyright- the jersey may also contains some write ups, graphics, pictorials or sculptural features. These will be protected by another law – copyright. But hear me here – copyright subsists in the original works of authorship when fixed on the jersey. So, there is no need to register with PACRA – rights are protected automatically! In Zambia copyright is governed by the Copyright and Performance Rights Act, Chapter 406 of the Laws of Zambia.
4. Patent – If that jersey contains some unique and special scientific discovery in its fabric or how it works on the body of the players, then it can also be protected by patent law. This is very rare but some have patented jerseys. In Zambia, patents must be registered at PACRA fir one to claim the invention. This is done under the Patents Act No 40 of 2016.
So, four different laws deal with one simple jersey as demonstrated above. That is way bigger brands will simply insert a clause stating that “all IP rights belong to Nike” meaning that whomever was involved with development of the jersey gives up the rights. This is usually in exchange for cash! Sometimes, the IP rights can be shared.
So, who owns the 2012 Afcon jersey?
The answer lies in the contract between Nike and FAZ! The Kalusha Bwalya executive that signed contract with Nike may shed more light as to whether they gave away the IP rights or not…(I wish I can see the contract and the IP rights clauses). I hope FAZ secretariat have copy in achieves.
By the way, this has nothing to do with wearing of the apparel by ordinary citizens at any event so long as it is not counterfeit. You are free to wear them anytime…
Anyway, Zambians are only interested in watching the game between their Legends and Barcelona FC. The team can even play shirtless we do not care…it is the players we are interested in!
The author is Zambian Lawyer and Journalist who is also an IP Rights Practitioner. He holds a Masters Degree in Intellectual Property (MIP) under the scholarship of the World International Property Organisation (WIPO) and the Japanese Government.
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