Retro football kit based designs

'Is it legal', 'can I do this' type questions and discussions.
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Retro football kit based designs

Post by D43KJ »


I am looking to create jiu jitsu training gear (tshirts and shorts) based off the designs of retro football kits (national and club kits). What would be the laws on this please? I wouldnt use the original sponsors or brand logo. Id guess it wouldnt be legal to use a teams badge but what about a national teams? The design/patterns of the tshirts would be very similar to the design of the football kits. Is this allowed?

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Re: Retro football kit based designs

Post by AndyJ »

Hi D43KJ and welcome to the forum,

Most football shirts lack the sort of creativity necessary to gain copyright. A single colour or a simple combination of two or three colours really isn't an original choice.

Because team strips can, over time, identify a particular team, they are often treated as branding and therefore they may sometimes be registered as trade marks. In order to qualify for trade mark registration the design of the shirt needs to be distinctive or to have acquired distinctiveness through use. Trade marks are only protected in respect of the classes of goods or services for which they are registered, but since football shirts are likely to be registered as clothing (among other things), your use of a similar design for another form of clothing would almost definitely infringe an existing shirt if it had been registered in this way. The trade mark owner would not need to prove that anyone had actually been confused about the origin of the goods which were the subject of the claim. But this would only apply within the territory where the trade mark was registered, for instance in the UK or within the EU etc.

To take an example, Newcastle United have obtained trade mark registration for a number of their strips, including the black and white stripe design which most fans would associate with the club (see here and here for instance). On the other hand Manchester United have not registrered any of their shirts in this way. Often, the only thing which is registered is the club name and badge or crest, but since you say that you wouldn't include those, this leaves many shirt designs available to be copied without infringing any trade marks. To see if a shirt design has been registered as a trade mark, you need to go to the registry for the relevant country and do a search, using the owner's name since you can't generally search on a figuative mark. For the EU the registry is the EUIPO, and for the UK it's the Intellectual Property Office. Trade marks which have international appeal may be registered in several countries.

In addition to the registration of trade marks, which is based on statute law (in the UK, that's the Trade Marks Act 1994), there is also a common law tort of passing off. Under this legal concept, a mark or sign etc which has acquired goodwill may be infringed if someone else uses the mark or something very similar to it in a way which causes economic or reputational damage to the mark's owner, through misrepresentation. You can read more on the subject of passing off here. Many football clubs who haven't registered their shirts as trade marks are likely to rely on passing off to defend their branding if they feel that the sale of your products amounts to unfair competition. The best way to avoid a claim of passing off is put prominent notices on your products and in any advertising disclaiming any connection with the football team concerned. Passing off can only be proved if there is a real likelihood that the average consumer would be confused as to the origin of the goods being offered for sale. To that extent, passing off is not as strong a protection as a registered trade mark.

Ultimately you have to assess why you want to copy these shirts. If it is almost entirely to benefit from the association with the individual football club, then you are more likely to leave yourself open to a passing off claim, since that is trading on their goodwill with the fans.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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