The Red Devil Guarding the Gates of IP

The Red Devil Guarding the Gates of IP

For people who do not know a whole lot about intellectual property (IP) and what it entails, their main exposure to the complex world of IP comes through media reporting on the likes of copyright infringement cases, and the ever increasing role of branding in everyday life. Due to the COVID-19 pandemic halting sporting activity in the UK for an extended period of time, one IP story managed to become one of the biggest sports stories in the UK during lockdown. The news was that heavyweight English football club Manchester United was suing the popular gaming series Football Manager for infringing a trademark.

The Red Devils’ claim that its trademarked name has been used extensively throughout the game and thus violated the IP rights of the football club. Perhaps in fear of reprimand, the game does not include the official logo of Manchester United Football Club, nor the logo of any team in the English Premier League. Without having the official logo, surely the game would be safe from falling foul of IP rules? On the contrary, Manchester United further claimed that Football Manager infringed on its IP rights due to not showing the official crest of the club, but rather a simplified red and white crest, and claimed that this “deprives the registered proprietor of its right to have the club crest licensed”.

The trademark infringement case hit the news hours after the football club announced an approximate £30 million loss for the first quarter of 2020. One interesting revelation surrounding this case is that the lawyer representing the game’s creators has claimed that Manchester United personnel had received numerous copies of the game over the years and had publicly praised the game – meaning that the club would have been fully aware of its name being used in the same fashion for a long period of time.

Sega and Sports Interactive, the creators of Football Manager, claimed that if they were unable to use the name “Manchester United” in future games it “would amount to an unreasonable restraint on the right to freedom of expression.” This ultimately creates an important question in the field of IP: does IP limit free speech through strong protection?

Despite numerous cases such as one between a Danish artist and fashion group, Louis Vuitton, whereby both parties endured a lengthy legal battle over the artist’s use of a Louis Vuitton handbag in a painting, resulting in the artist winning the case on freedom of expression grounds – the answer to the above question is still no. The purpose of intellectual property rights be it trademarks, designs, or patents, is not to prevent others from saying or describing a protected name or item, but to prevent others making commercial gain from what is rightfully protected. This is the same argument used by Manchester United, when claiming the game actively encourages users to download data packs that infringe on IP rights of many football clubs, without the game creators paying for access to these IP rights.

Another important matter that has come to fruition following the Manchester United and Football Manager case is the issue of IP policing. If Manchester United, or any holder of registered IP for that matter, did not seek to police its IP assets being misused and knowingly allowed its IP to be used in a non-conforming manner, then a dangerous precedent is set.

This has a number of impacts:

  • The reduction in probability of successfully winning an infringement case in the future due to previous leniency shown to other infringing parties.
  • The brand becomes less reputable with questionable integrity.
  • The creation of confusion that could pave the way for other parties to wrongly exploit the IP.
  • The threat of customers no longer associating a name or logo with your brand but rather associating it with the party wrongfully using the IP.

It has never been more critical to protect the IP of your firm or brand. With the modern, fast-paced global business environment and the ever-increasing importance of digital marketing and the role of social media, the proper policing of IP assets is a requirement. Many cases of IP being copied and exploited causes deduction from the protector’s revenue and reputation, and thus proving the importance of taking a tough stance on IP protection.

What can we at Metis Partners do to assist you in protecting your IP?

Aside from our corporate recovery and valuation services our highly skilled and experienced team offer a number of services that help protect client’s IP, namely:

Commercial IP Due Diligence: We identify and assess the quality of IP assets owned or relied upon by a business, and this service is used by both prospective buyers and investors, as well as banks that lend against IP assets. We confirm the IP assets that are owned and controlled by the business; highlight weakness in an IP portfolio; and provide, amongst other things, robust recommendations with regards to the protection and security of the IP portfolio of clients.

IP Audit: For any IP-rich companies, obtaining the appropriate IP protection and establishing good IP management practice are likely to be at the forefront of the corporate agenda. Our IP Audit provides companies with an overview of its critical IP assets, maps these to revenue streams, highlights potential commercial risks and provides recommendations and action points the company can take in order to protect, and thereby maximise, IP value.

IP Strategy: Metis Partners assists companies leverage their IP assets by helping them create, implement and maintain a robust IP strategy, aligning directly the business strategy. We recommend short and/or long-term actions a company can take in order both to strengthen its competitive advantage and create stronger barriers to entry. We provide ad-hoc support and advise on the following matters, according to each company’s needs and resources: IP Strategy Development; IP Improvement; IP Policy; IP Training; and IP Reporting.

 

Author: David Hood, Junior Analyst

Email: David@metispartners.com

 

 

 

 

 

 

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