Press and Social Media

King Maradona´s mines*

• 2021, Jan
• By Gustavo A. A. Sena

On November 25, 2020, Diego Armando Maradona died. The legend about one of the best players, if not the best, in the history of football in the world has been born. But the novel that gives the title to this article also has begun to be written, which in its first lines shows a plot of interdictions, doubts, distrust between its main characters, his heirs, his ex-wife, Diego's brothers and the lawyers of all of them.

Different chapters will be written in relation to Maradona's children, if they are 5 or 7 or perhaps 13 and on the identification of the assets, bank accounts in different countries, storage boxes and containers with different objects and belongings of the idol, top-of-the-range cars, including a Rolls Royce in Abu Dhabi. Donations made to different people. Trademarks registered in various countries in his name, pseudonym and others, which are identified with the D10S expression (mixture of the words “God” and the number ten -10- in Spanish).

Unlike Henry Rider Haggard's novel, King Solomon's Mines, where the treasures were to be found, many of the trasures are on display in this case. Perhaps the most valuable of them are hidden behind the dazzling produced by the most striking ones such as bank accounts or cars, for example.

I have no doubts that “the writer” of this novel will focus, in its different chapters, on the characters that are declared heirs and on the incalculable value of one of the assets of Maradona's estate.

Many artists and athletes continue to generate enormous profits after their death from the exploitation of their works, names, images and trademarks by their legitimate heirs or successors.

It is enough to inquire on any of the search platforms on the Internet who the ones who bill the most after their death are, and Michael Jackson and Elvis Presley will appear leading the ranks.

In the field of sport, the case of Ayrton Senna, who died in an accident on the Imola track in 1994, is striking. The income that he has generated after his death from the sales of products bearing his trademarks and names ranges between 300 and 450 million dollars (https://www.merca20.com/las-marcas-que-estuvieron-alrededor-de-ayrton-senna-leyenda-del-automovilismo)

The assets that belonged to Maradona, some of high value, may see an increase in it after his death. However, all of them, to a greater or lesser extent, will tend to run out. None of them will have the capacity to be a producer of business and future profits as his Trademarks, his name, pseudonyms and Image will.

Whoever, or specially those heirs who keep them, will be standing on a gold mine, an incalculable income-generating reservoir. They may hold them indefinitely if they comply with the legal requirements established by each country for their maintenance and renewal upon expiration.

This Maradona´s ability to generate business was a constant throughout all these years and it is maintained.

I remember when, before the 1986 World Cup, Maradona filmed a commercial for Talent (a TV manufacturer), which is still on the Internet, it was only a few seconds long. At one point, we had to intervene in the preparation of the contract. After the World Cup, the representatives of Maradona at that time told us that they were raining requests for licenses, use of the image, requests for filming of commercials, etc., where the amounts that were discussed made the contract with Talent seem ridiculous, even though its amount was of tens of thousands of dollars.

In 1989, Diego and Claudia got married in Buenos Aires and many guests travelled from Europe. Among them, there was a lawyer from Barcelona, Jaime Isern Jara. He was the agent of Diego Maradona Producciones SA that protected his marks around the world. He interviewed us and the following year, he empowered us to act in Argentina. For a while, we lived the vertigo that Maradona's trademarks produced: license requests, the many products to protect, the coverage to give to the marks given the business in progress.

The temporal circumstances are different but Maradona's ability to summon people remained intact until his death. The vertigo is intact but dormant, thus, building a good brand image, highlighting all the good things that Maradona had, his courage, bravery when he wore a football-shirt and his love for the game, with an adequate strategy, his convening capacity will surely continue. He has everything to make it so. Michael Jackson, Elvis and Ayrton, to name a few, are examples of this.

Returning to the novel, “the author” will have to write the plot line marked by the heirs, a line that will seal the fate of the main jewel of Maradona's treasures.

Heirs may make two unforgivable mistakes: fighting and not caring for trademarks; fighting would mean looking at the tree and not the forest. Not taking care of the trademarks would be like leaving a Rolls Royce out on the street to rust.

Trademarks must be taken care of, protecting them in the classes that include products and services on which licenses will be granted and defending them from use by unauthorized third parties. How and who will make the decisions will be fundamental questions to be resolved.

Taking care of the image of the trademark is essential; while being mindful of not granting licenses that are not convenient, even when they are financially profitable.

Caring for a trademark is also defending it. It is not a minor issue considering the social phenomenon that Maradona causes.

Something similar happened with the Argentina Football Team. There is a feeling that the National Team belongs to everyone, because it is the National Team. Thus, we could all use and market products that reproduce their colours, emblems and symbols.

In fact, this is not true. They belong to the AFA (Argentine Football Association) Selection, a private entity, which is the only entity that can be member of FIFA -another private entity-, and that participates in the championships that FIFA organizes. They do not belong to the country. They are AFA’s. Every trademark that reproduces their sports equipment, shirts, socks, their badges, etc. belongs to AFA and no one can use them without their authorization.

The same happens -and will happen- with Maradona. The marks and images of the popular idol are not everyone's neither are they freely usable. On the contrary, they belong, today, to the company Sattvica SA, and, tomorrow, they will belong to those who are the legitimate heirs of the “golden boy”.

Now, who will take care of the trademarks? Who will be their owner? This is an issue to be resolved.

For this reason, there will be a chapter -or more than one- in the novel about the reasons why the trademarks that once belonged to the company Diego A Maradona Producciones SA or to Maradona personally are in the name of Sattvica.

On previous occasions we have referred to the fact that our Law is clear when it establishes that for someone to register or use the name, pseudonym, image, portrait of a person as a trademark, they need their authorization or that of their heirs up to the fourth degree inclusive.

The transfer of ownership, in itself, implies consent for the assignee company to use the trademarks and register other variants thereof.

Can an authorization or consent be revoked?

Yes, whether it is due to a fault of the authorized person or to the author's own decision or their heirs, but that will depend on the case and the situation.

We will have to see the reason for the transfers, their cause. Many times, it remains hidden, the contract is not registered in the Trademark Registry and, other times, there is no valid and non-objectionable cause.

The cause for which the trademark is transferred to a company may be due to different contracts, it might have been the object of a sale, or given in guarantee of a (mutual) loan, object of contracts such as trust, donation, as capital contribution to a company, or object of a license of use, etc.

In the case of Maradona's brands, we are dealing with Power of Attorney for Representation.

This arises from the documentation submitted to the registration of the MARADONA trademark in Uruguay.

There, Matías Morla appeared with a power of attorney at the Argentine consulate in Abu Dabi, on December 7, 2014, where Maradona issued a broad power of administration and disposition on behalf of Morla and other people.

With this power of attorney, he -on behalf of Diego Maradona- authorized Sattvica SA to register as a trademark, in Uruguay, the name MARADONA and its possible variations, namely: DIEGO MARADONA, EL DIEGO, DIEGO ARMANDO MARADONA, EL 10, LA MANO DE DIOS¨ to identify all kind of goods and services in the name of Sattvica SA.

With Maradona´s death, the Power of Attorney expired and the attorney should be held accountable. Acts such as that at Uruguay are -in principle- valid but voidable.

In cases of registry assets - as trademarks are-, express powers are needed to transfer them to a third party.

Even if it is said that the power of attorney is sufficient, because it authorizes Morla and others to acquire and dispose of trademarks in general, I understand that, in the case of trademarks that reproduce the name of Maradona, an authorization of or express instruction from their owner should be required.

That is to say, the express authorization was given by Morla on behalf of Maradona for the trademarks to be registered by a company of which Morla holds 50% of the share capital.

Was that the intention of the owner? These would be acts called "acts with oneself" by our Civil and Commercial Code and they would need to be ratified. This type of acts occurs when the representative acts on behalf of another but for their own benefit or that of a third party.

With Maradona dead, the ratification would have to be given by his heirs within the framework of the Succession proceedings and everything seems to indicate that they will not do so, in which case the marks will remain in the head of the heirs.

While I was writing these lines, the existence of another power of attorney or documents of a later date, that appears to be from 2016, was reported in the media, which apparently states Maradona's will so that Morla administer his trademarks for the benefit of his sisters on whose behalf they should be transferred.

If this is confirmed, and if the formalities established by law have been fulfilled, we would be deadling with an allegued “donation” and a possible excess of Maradona in the fulfilment of the “legitimate”, which is the portion of the inheritance of which he cannot deprive their forced heirs (there are only descendants). Maradona could freely dispose of ⅓ of his inheritance in favor of third parties, and the trademarks, due to their value, would greatly exceed said portion.

Not a minor issue is the question of how the trademarks will be valued; if we consider their goodwill, and the enormous amount of business that can be done with them, through their license, franchise and merchandising. The value at the time of death is less than what they will have in the near future.

As we have said, Maradona's trademarks, if well managed, can generate much more than that, and than any of the other assets, if they are duly protected in the classes of goods or services and in the countries where they may be the object of licenses or other contracts. In addition, there should be a careful choice of licensees, an adequate monitoring of the development and compliance of contracts and, at the same time, they should be defended from piracy attacks or unauthorized uses.

I hope that the heirs, whether they be 5, 7 or 15, understand that if they work together, they will earn much more money than in fights among themselves within the succession proceedings. Otherwise, they will be losing a unique opportunity to exploit one of the most emblematic trademarks in the field of sport in history.

Then, it is imperative to take measures to preserve, care for and strengthen all of Maradona's trademarks.

Those involved should agree, as soon as possible, in what to do with them; unify the representation in some of them; unify the professionals who will advise them on the trademark matter. They should also decide what is the image of the Maradona´s trademark that they will preserve and impose.

The writer of the novel will have stories to tell that will be born from the main novel or, if the heirs choose to fight, they will narrate how Maradona's gold mine was buried in tons of rubble formed by the judicial files originated from the disputes among the heirs. Moreover, in this case, the "golden boy" or "la mano de D10S” (the hand of God) will not be able to do anything about it.

This article has been published in the following media.

 

SENA & BERTON MORENO
Gustavo A A Sena
gsena@sbm.com.ar

The author is partner at the law firm SENA & BERTON MORENO founded in 1938

SENA & BERTON MORENO was founded in 1937 by ALFREDO SENA and ERNESTO E. BERTON MORENO as a Patent and Trademarks Agency with a stable staff of only four people. Since then, the Firm has grown to reach its current size of forty people, working at our offices located only two blocks away from the Government House and at the heart of the commercial and financial district of the city. Ver más