Wednesday, 2 September 2009

Own goal or opening goal?

A recent article in the September newsletter of FIFA’s attorneys, Spoor & Fisher, is replete with soccer imagery. In the article, it was stated that FIFA had had ‘the honour of scoring the first goal in the 2010 Soccer World Cup’. It does seem as though they chose a less than worthy opponent, a small Pretoria tavern that had the words ‘World Cup 2010’ below its name. Eastwoods Tavern did not put up much of a fight – a consent order, including a large costs order in FIFA’s favour, is not much of a famous victory.

The next victory is similarly less than impressive. A newspaper report states that FIFA has won another victory, against a Cape Town businessman who has a registered design for a keyring holder. The article, available here, implies that FIFA is relying on passing off in this instance. It does not appear that the businessman concerned opposed the legal proceedings but he allegedly faces paying FIFA’s legal costs, amounting to ‘hundreds of thousands of rands’, according to another business report: another famous victory for Goliath-- again against a rather timid David.

Tellingly, the only defended action, against a large company that has the funds to litigate, is not proceeding according to plan. This time it is Adams & Adams, another of the largest IP firms in South Africa, who acts for FIFA to prevent the sale of lollipops with the numerals 2010. A report on today’s Legalbrief (available here) states that judgment has been outstanding for over nine months, and that any judgment is likely to be of academic value only, especially if the losing party lodges an appeal. Very reminiscent of the Ferrero judgment in Germany- also a confectionery manufacturer.

Conspiracy theorists might wonder if the reason for this delay is that the constitutionality of the ambush marketing provisions, on which provisions FIFA relies, has been questioned. Possibly a ruling on this issue is not part of the ‘game plan’?

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