12 July 2021
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On 18 April 2021, the proposal for a new mid-week competition for European football sent shockwaves throughout the football world. Plans for a Super League that was scheduled for an August kick-off have largely been met with fierce opposition from fans, football pundits, football players, politicians, domestic football leagues such as The English Premier League, and football governing bodies such as UEFA and FIFA.

The Super League was poised to replace the Champions League as the showpiece competition of European football. It was described as “the pinnacle of club football” by the midfielder, Mason Mount after Chelsea F.C. were crowned the Champions of Europe for winning the UEFA Champions League title for the 2020/21 season. The breakaway football competition would have featured elite football clubs from the top-flight domestic leagues in Europe, namely, the Premier League in England, La Liga in Spain and Serie A in Italy.

The announcement of the breakaway football competition attracted significant media coverage and continues to do so as only three of the twelve founding clubs, specifically, Real Madrid CF, FC Barcelona and Juventus F.C. remain committed to the goal of a Super League. It is unclear from a contractual standpoint whether nine of the twelve founding clubs have formally withdrawn from the project derided as “Grand Theft Football”. The Super League saga has raised complex and interesting questions of competition law and employment law, but the focus of this blog will be on the interplay between intellectual property rights and the breakaway league.

Brand protection considerations for a breakaway league

The Super League as it is officially known is commonly referred to as the European Super League or the ESL (not to be confused with the Electronic Sports League for e-sport competitions). Intellectual property rights, specifically trade marks in this case, are intangible property assets that can be of significant commercial value to a brand. Prior to announcing its plans for a Super League, the European Super League Company, S.L. took pre-emptive steps to apply for trade mark protection for the Super League branding. The Spanish holding company applied to register logos for The Super League (‘The Super League Marks’) at the European Union Intellectual Property Office (EUIPO) which are reproduced below.

UEFA v The (European) Super League – intellectual property rights on the legal playing field_fig1

Figure 1

UEFA v The (European) Super League – intellectual property rights on the legal playing field_fig2

Figure 2

Notably, The Super League Marks were applied for on 16 April 2021 which was two days before the dramatic announcement of a Super League (see press release here). The timing of filing trade mark applications is a key component of a brand protection strategy that is fit for purpose. It is recommended that careful consideration is given to whether a trade mark application should be made at the relevant trade mark offices prior to launching a new brand or entering into a new market for the brand.

UEFA is also tactical in its trade mark filing strategy. For example, trade mark protection for the branding to be used for the UEFA European Football Championships is sought far in advance of the quadrennial competition. UEFA filed trade mark applications at the EUIPO and the UKIPO for the words UEFA EURO 2020 and the UEFA EURO 2020 logo (‘the UEFA EURO 2020 Marks’) in September 2016. On 17 March 2020, UEFA EURO 2020 was postponed because of the onset of the Covid-19 pandemic. UEFA announced that the tournament would, however, retain its UEFA Euro 2020 branding to achieve the twin goals of (a) commemorating the 60th anniversary of the competition and (b) promoting sustainability by not undertaking a rebranding exercise that would “generate additional amounts of waste” by disposing of existing merchandise stock to which the UEFA Euro 2020 Marks have been applied, such as replica jerseys and souvenirs. The rescheduled tournament took place between 11 June 2021 and 11 July 2021. The Italy national football team were crowned UEFA Euro 2020 Champions which in turn prolongs the 55 years of hurt for the England national football team and its supporters.

Combatting the threat of ambush marketing

As a defensive strategy, UEFA also applied for trade mark protection for the words EURO 2021 and UEFA EURO 2021. The latter trade application was filed at the UKIPO on 13 March 2020 in advance of UEFA’s announcement that the European Championships would be postponed. These trade mark applications would confer UEFA with earlier rights which could be relied upon to launch a “counter-attack” by opposing the registration of an identical or confusingly similar trade mark by a third party.

Ambush marketing is a perennial challenge for event organisers. For example, a trade mark application for the words EUROS 2021 was filed at the UKIPO by an individual for use in relation to goods such as clothing, footwear and headgear on 17 March 2020, but this trade mark application was later withdrawn. In addition, German sportwear brand, Puma surrendered the EU trade mark registration for the words PUMA EURO 2021 which had been applied for on 26 March 2020. Notably, Puma is neither an official sponsor nor an official licensee of UEFA EURO 2020.

Concluding thoughts – The Final Whistle or Extra Time for The Super League project?

The Super League could have effectively usurped the Champions League as the top-tier European football competition, disrupted the economic model for European football and gradually diminished the popularity and financial viability of domestic football leagues and domestic football cups such as the FA Cup, Copa del Rey and the Coppa Italia. But for now, The Super League project has been shown the red card.

If the breakaway league does go ahead with a revised competition format, perhaps with invitation spots for popular teams from the MLS and the Chinese Super League, the trade mark portfolio of The Super League is likely to substantially increase. For example, the Premier League, which is itself a breakaway league, owns a vast array of trade marks. The European Super League Company, S.L. may also decide to commission an anthem for The Super League and enter into a copyright assignment to acquire all the rights to the lyrics and the accompanying music for commercial exploitation. Invariably, a future Super League anthem would be compared to the iconic Champions League anthem written by the English composer, Tony Britten in 1992.

The legal and trade mark departments at Mewburn work together seamlessly to form a high-performing and cohesive team that helps clients to achieve their goals at all stages of brand protection, brand management and brand enforcement. We act for clients in a variety of sectors who benefit “on the field” from being able to leverage the team’s extensive experience, creative thinking and world-class technical ability which is deployed to execute a winning strategy in matters spanning the full range of intellectual property rights.

 

This blog was originally written by Hilda-Georgina Kwafo-Akoto.

Andy is a Partner and Chartered Trade Mark Attorney at Mewburn Ellis. He handles a wide range of trade mark work, from searches, portfolio reviews and devising filing strategies to prosecution of applications, oppositions, revocation and invalidity actions. Andy has extensive experience representing clients at the UKIPO, EUIPO and WIPO (for international ‘Madrid Protocol’ registrations).
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