Anyone for tennis?
Thanks to the IPKat and his sources for an update on the long rumbling battles between Adidas (of the three stripes of course) and sports administration. Being in theory rather keen on tennis, I've been monitoring this one with interest.
The battle concerns restrictions on inclusion of manufacturer's and sponsors logos on sports attire. Measuring tapes are frequently used to establish whether the logo is too big or too small..... Complaints were made to the International Olympic Committee (by among others, Reebok and Nike) that the Adidas three stripes on clothing were often bigger than the limit and should be caught by the rules. Adidas argued that these stripes were not part of the logo and so not properly subject to the controls. Phew. But the IOC didn't agree.
Various tennis administrators (ITF, the tennis governing bodies of UK, France, Australian and the US (the Grand Slams) and Wimbledon's All England Club) in turn produced a new interpretation of their rules. This meant that size restrictions applied not only to standard manufacturer's logos, but to distinctive design elements which identified the manufacturer. This required the stripes to be removed from sponsored players' clothing to the extent that they were bigger than the logo rules. Specific reference was made to Adidas (alone) regarding interpretation of the rules.
Adidas were not happy and ultimately raised an action in the English High for breach of EC competition law, articles 81 and 82 (applicable by the English court on the basis of Regulation 1/2003). The claims were based on the bodies together applying the new interpretation of the rules in a way which discriminated against Adidas and, by doing this, abusing individual, or collective, dominant positions. Now, just in time for Wimbledon (rain, anyone?), and at the end of a grace period (just after the ongoing French Open) the High Court has delivered its initial decision.
The court considered whether the article 81 and 82 claims could survive summary judgment applications; whether they should be dismissed on the basis that they had no reasonable prospect of success. The court also considered whether, if there was no summary judgment, interlocutory injunctions should be granted prohibiting application of the new interpretation of the rules before full trial.
This is a full analysis of the basic elements of article 81 and 82, their applicability to sporting bodies, jurisdiction, and the American Cyanamid test regarding grant of interlocutory injunction. The court made particular reference to Intel v Via, and the statement that care should be taken in granting summary judgment in article 81 and 82 claims, where facts and law often mixed and the ECJ case law was constantly evolving.
The sports bodies argued their interpretation to be objectively justified and that they did not intend to apply it in a discriminatory manner - although the judge noted that even if they did not intend to discriminate against Adidas, they may have done so. Reference was made to the Diadora two stripes and the Nike sunray. The judge held that there were arguments that these design elements would be caught by the new interpretation and no evidence that the sports bodies intended to apply the rules to anyone other than Adidas. If this was so, then the article 81 and 82 defences did have a reasonable prospect of success and summary judgement should not be granted.
The interlocutory injunction analysis is detailed, and focusses on the outcome for both sides if the injunction were to be granted, the financial and reputational impact, and the extent to which these can be assessed and compensated by damages. Ultimately, the court granted the interlocutory injunction. SO the Adidas three stripes in their present form will appear at Wimbledon.
In line with previous agreement, the claim surviving, a trial will take place at the end of the year. This is after Wimbledon and the US Open, with a decision to be available before the Australian or next French Opens.
The decision continues the sporting theme in article 82 cases - see the groundbreaking At the Races at the end of last year. These cases locate direct article 82 claims in national actions - in both cases with a hint of IP issues (although they did not form part of the claim). How long before the Eurodefence involve patents, not article 82?
The battle concerns restrictions on inclusion of manufacturer's and sponsors logos on sports attire. Measuring tapes are frequently used to establish whether the logo is too big or too small..... Complaints were made to the International Olympic Committee (by among others, Reebok and Nike) that the Adidas three stripes on clothing were often bigger than the limit and should be caught by the rules. Adidas argued that these stripes were not part of the logo and so not properly subject to the controls. Phew. But the IOC didn't agree.
Various tennis administrators (ITF, the tennis governing bodies of UK, France, Australian and the US (the Grand Slams) and Wimbledon's All England Club) in turn produced a new interpretation of their rules. This meant that size restrictions applied not only to standard manufacturer's logos, but to distinctive design elements which identified the manufacturer. This required the stripes to be removed from sponsored players' clothing to the extent that they were bigger than the logo rules. Specific reference was made to Adidas (alone) regarding interpretation of the rules.
Adidas were not happy and ultimately raised an action in the English High for breach of EC competition law, articles 81 and 82 (applicable by the English court on the basis of Regulation 1/2003). The claims were based on the bodies together applying the new interpretation of the rules in a way which discriminated against Adidas and, by doing this, abusing individual, or collective, dominant positions. Now, just in time for Wimbledon (rain, anyone?), and at the end of a grace period (just after the ongoing French Open) the High Court has delivered its initial decision.
The court considered whether the article 81 and 82 claims could survive summary judgment applications; whether they should be dismissed on the basis that they had no reasonable prospect of success. The court also considered whether, if there was no summary judgment, interlocutory injunctions should be granted prohibiting application of the new interpretation of the rules before full trial.
This is a full analysis of the basic elements of article 81 and 82, their applicability to sporting bodies, jurisdiction, and the American Cyanamid test regarding grant of interlocutory injunction. The court made particular reference to Intel v Via, and the statement that care should be taken in granting summary judgment in article 81 and 82 claims, where facts and law often mixed and the ECJ case law was constantly evolving.
The sports bodies argued their interpretation to be objectively justified and that they did not intend to apply it in a discriminatory manner - although the judge noted that even if they did not intend to discriminate against Adidas, they may have done so. Reference was made to the Diadora two stripes and the Nike sunray. The judge held that there were arguments that these design elements would be caught by the new interpretation and no evidence that the sports bodies intended to apply the rules to anyone other than Adidas. If this was so, then the article 81 and 82 defences did have a reasonable prospect of success and summary judgement should not be granted.
The interlocutory injunction analysis is detailed, and focusses on the outcome for both sides if the injunction were to be granted, the financial and reputational impact, and the extent to which these can be assessed and compensated by damages. Ultimately, the court granted the interlocutory injunction. SO the Adidas three stripes in their present form will appear at Wimbledon.
In line with previous agreement, the claim surviving, a trial will take place at the end of the year. This is after Wimbledon and the US Open, with a decision to be available before the Australian or next French Opens.
The decision continues the sporting theme in article 82 cases - see the groundbreaking At the Races at the end of last year. These cases locate direct article 82 claims in national actions - in both cases with a hint of IP issues (although they did not form part of the claim). How long before the Eurodefence involve patents, not article 82?
posted by Dr Abbe Brown at 9:27 am
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