Tuesday, 22 February 2011

Could Formula One be a trade mark?

Gone are the days when you could build a Formula One car in an Essex garage, like Peter Connew did in 1971, hire a competent driver (François Migault in this case) and turn up to take part in a Grand Prix (which actually the Connew didn't do very much). I'm not going to wax lyrical about those days, when one could expect three or so drivers to be killed in the course of a season, but that's not to say I like the commercial circus that grand prix motor racing (or "F1") has become.

Too much is fought out not by the drivers but by the lawyers these days, and the latest case was in the General Court last week when Formula One Licensing failed in opposition proceedings based on their "F1" trade marks against the figurative mark F1 LIVE. I don't know (it's 35 years since I used to read it regularly, and indeed sent off my first ever job application to it) whether Autosport carries regular law reports yet, but here's their story about the case. You might prefer - you might consider more authoritative - the judgment published on the Curia website, T-10/09 Formula One Licensing BV v OHIM.

The story is that Formula One Licensing took exception - several years ago - to F1 LIVE. It based the opposition on the word mark F1 and a figurative mark familiar to anyone who's watched a race on the TV in the past few years. The word mark, the court thought, was going to be perceived as an abbreviation of Formula One, and therefore descriptive, although in these proceedings it couldn't do much about it except to hold that there was no likelihood of the public getting confused. The figurative mark was what the public had been educated to recognise, but it wasn't very like the mark applied for - so again no likelihood of confusion.

I'm afraid it's all Colin Chapman's fault, since he brought commerce into the sport in 1968 with Imperial Tobacco sponsorship and renamed the team Gold Leaf Team Lotus - a trend that continues today with Red Bull not only being the name of a drink but also of a racing team - whose 2009 car (or probably a non-working display model) appeared in the foyer of the RAC on the day of this year's Motor Law conference, taking the place of Jim Clark's 1961 Lotus 18 which had been there the previous night.

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