Those of us who enjoy playing the Football Manager video game may have to get used to referring to the famous Red Devils by another name, if the Premier League goliath is successful in this case.

If you are not familiar, Football Manager is a popular football simulation game whereby the player manages every aspect of the team, including football player selection, development and tactics. The video game is developed by Sports Interactive Limited (SI) and published by Sega Publishing Europe Limited (SEGA).

United launch an attack

Manchester United are suing both SI and SEGA for the unauthorised use of its name throughout the video game. The club has also claimed that the use of a simplified red and white logo in place of the official club logo infringes its registered rights because it deprives the club of licensing opportunities. In my opinion, arguing for infringement on the basis of the defendants’ decision not to use a registered logo is unusual and a rather tenuous position to hold. At a preliminary hearing, the barrister for Manchester United, Simon Malynicz QC, supported this claim by arguing that consumers expect to see the official logo next to the name of the club and therefore its absence amounts to wrongful use. Whilst defending this claim as arguable, Mr Malynicz did at least admit that the argument was certainly novel.

In addition, Mr Malynicz asked the judge to allow the club to amend its claims to include accusations that SI and SEGA encouraged the use of third party patches. These patches are said to allow players to incorporate replica trade marks of football clubs in to the game. The use of such patches was claimed to benefit the defendants’ sales figures whilst allowing them to avoid taking any licence. The defendants naturally opposed Mr Malynicz’s request.

The defence holds firm

Both SI and SEGA defended these allegations by arguing that there is no likelihood of confusion or damage to Manchester United’s trade marks. Addressing the use of the club’s name and the simplified red and white logo, the defendants’ barrister, Roger Wyand QC, argued that it would be an unreasonable restraint on the right to freedom of expression to prevent SI and SEGA using the name ‘Manchester United’ to refer to the famous club. It was also argued that the red and white logo is one of 14 logo templates which are randomly generated at the start of the game. Further, it is clearly indicated in the game that the official logo of Manchester United is not licensed by the claimant.

Another issue which the defendants sought to highlight was the club’s delay in taking any action. The defendants contended that Manchester United had acquiesced in the use of the club’s name and therefore can no longer complain of such use. Mr Wyand stated that copies of the video game had even been sent to officials and players of the club and this was met with positive press comments and tweets about the game. Manchester United are also claimed to have contacted SI to arrange access to its popular database for the purposes of scouting real-life football players.

Players of other popular football video games such as EA Sports’ ‘FIFA’ and Konami’s ‘PES’ will be all too familiar with trade mark issues preventing game developers from using the real names of football clubs. The long delay in bringing this infringement action is certainly odd and I can sympathise with the defendants’ arguments that Manchester United have acquiesced. On the other hand however, by allowing SEGA and SI to continue to use the name MANCHESTER UNITED, the club’s ability to control and commercially exploit its name would be materially diminished. It will be interesting to see how far this case progresses and whether there is any room for the dispute to be settled outside of court, perhaps involving SI and SEGA taking a licence from Manchester United. Watch this space.