For the 2014 season, Formula One will allocate a permanent number to each driver for the rest of his Formula One career. The race number of the driver must now be clearly visible on the front of the car and on the driver's crash helmet.
The governing body of Formula One, the FIA, gave drivers the choice of numbers between 2 and 99 with number one reserved for use by the reigning world champion. Any new drivers, either at the start of or during a season, will be allocated a permanent number in the same way.
The entry list for the 2014 FIA Formula One world championship was recently published revealing the race number each driver has been allocated. Some drivers chose numbers that had a special meaning such as Jenson Button who chose the number 22, the car number of his Brawn GP car when he won the 2009 Drivers' Championship. Others took a less sentimental approach. Kimi Raikkonen chose the number seven simply because it was the number he had last year.
Allocation of permanent numbers has been in operation in MotoGP and NASCAR for decades. One of the best examples is the use of stylised number 46 in yellow by multiple MotoGP champion Valentino Rossi which we have all seen on many items of merchandise.
The aim of allocating permanent numbers for drivers is to increase Formula One’s marketing potential and to help the sport commercialise the drivers. It will be easier for each driver to build a brand and an image if his race number stays with him for the duration of his career rather than changing every year.
A race number can be an effective part of a driver’s brand. The red number five is still associated with Nigel Mansel despite him retiring from Formula One in the early 1990s. Valentino Rossi has not taken number one after any of his championship wins in MotoGP but has continued to use his race number 46 because of the brand and image that he has built up in it.
However, the numbers available for race numbers in Formula One are finite and these numbers are used by individuals across a number of sports. This raises the questions of what rights a Formula One driver or his merchandise company can obtain in his race number and whether those rights could be used to prevent others from commercially exploiting those race numbers including participants in other sports.
What rights could a Formula One driver or his merchandise company obtain in his race number?
Through continued commercial use by the driver of his race number, goodwill and reputation can be established in that number such that he would have the right to prevent use of that number by third parties through the laws of passing off. This would arise where the public associate that number with that driver. However, this will be difficult in all but the most successful careers such as Barry Sheene’s association with the number seven.
However, drivers may begin to take steps to protect the intellectual property rights for their race numbers by obtaining registered trade marks for their race numbers.
It is not currently possible to obtain a European Community trade mark registration for a single numeral (e.g. 7) unless (i) the single numeral is sufficiently stylised in such a way that the overall graphic impression prevails over the mere existence of the single numeral or (ii) the numeral has become distinctive through the use made of it by the applicant. This is because a single numeral is not of itself distinctive due to the limited number of single numerals available to and used by traders. A trade mark must be distinctive to be registered and a trade mark is distinctive if it is capable of indicating to the consumer the commercial origin of the goods and services covered by the trade mark application.
Until 1998, it was not possible to register a combination of two numerals as a European Community trade mark. However, the European Trade Mark Office changed its policy and since then it has considered combinations of two numerals such as “32” to be distinctive. These marks can be registered without any stylisation or proof of acquired distinctiveness. The numerals “32” have in fact been registered for casino, gambling and betting services. Applications for combinations of two numerals must be carefully assessed as to any descriptive meaning for the goods and services covered in the application. It may not be possible to register combinations of two numerals in plain form for clothing or footwear if the combination of numerals could be used by others to indicate the size of clothing or footwear.
The implication of this is that it could create inequality in the strength of the registered trade mark rights that could be obtained by drivers and what commercial use the driver could prevent of his race number by third parties.
Kimi Raikkonen, who has been allocated number seven, would only be able to register the numeral seven as a trade mark in a stylised form unless he could prove he had acquired distinctiveness in the numeral. Lewis Hamilton, on the other hand, could register the numerals 44 as a European Community trade mark in a generic form without proof of acquired distinctiveness provided the number 44 is not descriptive of the goods and services applied for.
What is the potential impact upon new drivers and participants in other sports of registered trade mark rights obtained by drivers?
A trade mark registration provides the proprietor with a monopoly right to use that trade mark or confusingly similar marks in connection with the goods and services for which it is registered. If Raikkonen registered a stylised numeral seven for merchandise, he could prevent others from using marks for merchandise which were in an identical or similar stylised form to his registration. He could not prevent use of the numeral seven by a third party where it was being used in a very different stylised form.
If Lewis Hamilton obtained a registered trade mark for the numerals 44 in plain form for merchandise, he would be able to prevent third parties from using the numerals 44 for similar merchandise including in most stylised forms. This is the benefit of registering numerals in plain form. This would potentially allow Lewis Hamilton to prevent a new rider in MotoGP and any new driver in Formula One on Hamilton’s retirement from using the numerals 44 in a commercial sense for the goods and services for which Lewis Hamilton had registered it.
The numbers from 2 to 99 are a scarce resource and can be registered as trade marks with monopoly rights. What will happen if a retired driver continues to market his brand using a race number which has been re-allocated to a new driver? How will Formula One drivers compete with equally famous drivers in IndyCar using the same number? What if a famous MotoGP pilot is exploiting a race number which is the same as a NASCAR superstar? Is it realistic to permit a driver or a business that surrounds that driver to retain a monopoly over the use of his race number? Will this all lead to the courts having to reverse the ability to register trade marks for non-stylised numbers?
It is interesting to note that in the first season of Formula One with permanent number allocation, no driver has sought to reserve number 46. Rossi undertook tests for Ferrari back in 2010 and perhaps no one is prepared to trespass on the most exploited race number in motorsport.