The Belgian Red Devils in your advertising campaign: legal rules
Football madness is starting again, and you want to set up a commercial campaign around the Belgian Red Devils? Do you want to know what is legally allowed and what is not? Can you use photos of football players just like that? Can you use the words “Rode Duivels”, “Diables Rouges” or “Red Devils”? Can you use the logos of the Red Devils in an advertising campaign? Read this article and get an answer to these questions.
Photos of the Red Devils: copyright and portrait rights
Photos are often subject to both copyright and portrait rights. In short, copyright belongs to the person who took the photo (the photographer) or to the person to whom the photographer assigned the copyright (e.g., his employer, client, publisher or photo agency). Portrait rights or image rights belong to the person depicted in the photo. If you want to know more about portrait rights read this blogpost.
The Red Devils have transferred the exploitation of their personality rights (including their portrait rights) to the Royal Belgian Football Association (KBVB). Therefore, it is advisable to check whether you have permission to use a photo of the Red Devils or the KBVB. It is important to realise that you cannot just pluck photos from the Internet and reuse them.
It is sometimes said that copyright and portrait rights do not apply to “public figures”. This is not correct. There are exceptions to the protection of photographs of public figures, but if you use the photographs for advertising campaigns, these exceptions will most certainly not apply. For example, an exception to copyright applies in the context of “reporting of current events”. This exception is often used by news media. However, it seems unlikely that this exception can be applied to an advertising campaign. Moreover, public figures such as professional footballers have portrait rights (and privacy rights), unless the photos are taken explicitly as part of their public function. This is not the case for advertising campaigns. Therefore, you need the permission of the author of the photo (the photographer, or the person to whom he sold his rights) and of the person depicted (via the KBVB) before you can use a photo of a Red Devil football player in your advertising campaign.
Generally, there more is more leeway for “informative” use than for “commercial” use. In most cases, the distinction between “informative” and “commercial” use is clear, in other cases it is rather vague (e.g., can you use a photo of the Red Devils for the cover of a football yearbook? The Brussels Court of Appeal ruled in 2013 that this was an informative use, and that the use of the photo was allowed).
The trademark “Red Devils”
So now we know that we are not allowed to use pictures of the Red Devils or other professional footballers in a marketing campaign, without prior permission. But can you use the words “Red Devils” or one of the logos of the Red Devils in your advertising campaign?
In short: no, that’s not allowed either.
“Red Devils”, “Diables Rouges” and “Rode Duivels” are registered trademarks of the KBVB. In principle, you need the permission of the KBVB to use these trademarks. In practice, this means that you must pay a fee to the KBVB.
Looking in more detail at the trademarks registered by the KBVB, we see that they are registered as word marks for the following classes of products: class 16 (paper, cardboard, printed matter, photos, etc.); class 25 (clothing, shoes, etc.); class 28 (games, toys, sports articles, playing cards, etc.) and class 41 (training and entertainment, sports courses, organizing sports events, operating sports facilities, leisure activities, etc.).
The KBVB has also registered some figurative marks or logos, among others:
Does this mean that you can never use these trademarks for other products? The answer to this question will usually be affirmative. Even though a trademark registration is in principle only valid for the products or services for which the registration was made, the law prevents you from “taking advantage” of the success of someone else’s trademark (Article 2.20.1.c of the Benelux Treaty on Intellectual Property).
In other words: if you use the name “Red Devils” or a logo of the KBVB for goods that were not specifically selected by the KBVB at the time of the trademark registration, the KBVB can still take action against this use if it proves that you are taking an “unjustified advantage” of the trademark (e.g. commercial or financial gain) or are detracting from the distinctive character of the trademark (you are diluting the trademark) or the reputation of the trademark.
This means that in most cases, it will be prohibited to use the name “Red Devils” or a logo (e.g., the trident) of the Red Devils for advertising, especially when it is related to football. In certain exceptional cases, there may be a possibility for creative use. All in all, this will be exceptional, and you’d better ask permission from the KBVB before using the words “Red Devils” or a Red Devils’ brand in your advertising campaigns.
The Red Devils in “unofficial versions” of songs, books, etc.
In addition to the above, the KBVB often tries to make “official versions” of e.g. supporter songs, overview books, etc. They have the right to do so. However, the KBVB may not go too far in this respect and will usually not have the right to ban “unofficial versions”. After all, freedom of speech, freedom of the press and freedom of enterprise are also important.
As mentioned above, the KBVB bit the dust when it tried to prevent the use of a cover photo of the Red Devils in an “unofficial” yearbook (see above). The Court of Appeal found that the content of the book and the cover picture had an informative value, and that the freedom of the press outweighed the portrait rights. The arguments of the KBVB that the book was not written by a journalist, that the book was sold for a price, and that the publisher wanted to make a profit with the book, were dismissed by the Court of Appeal.
In my opinion, the same principle applies to fan songs. It is not because the KBVB has commissioned an official fan song that it can forbid others to make songs about the Red Devils. The copyrights, portrait rights or trademark rights of the football association do not go that far.
The Red Devils: What is legally allowed?
Of course, you can participate in the football madness surrounding the World Cup or the Red Devils. For example, you can sell products with Belgian flags, footballs or anonymous footballers (not shown recognisably). Of course, you can also sell official merchandising.
Don’t hesitate to contact us for further questions regarding copyright and trademarks.
Author: Bart Van Besien