Over the past few weeks, the song ‘Football’s Coming Home’ has been shouted at various levels of volume and inebriation all over England.
For our readers living under a rock or in the US, the national team managed to end a 55-year wait for a major final: the Three Lions will play Italy in the final of the European Championship 2020 (which was delayed by a year) on Sunday night and attempt to bring the trophy back to the home of football (soccer, for our American readers).
While this is an exciting development for England football fans, it also raises some serious questions about intellectual property that are worthy of unpacking before Sunday night’s big game.
For starters, the humble football was invented some time in the Middle Ages by what we can assume were some sporty monks who inflated a pig’s bladder and kicked it around a field. The football has since evolved and was first patented by Charles Goodyear in 1855.
Nearly 150 years later, in 1996, rock band The Lightning Seeds teamed up with comedians David Baddiel and Frank Skinner to write a song in honour of England hosting the European Championship that year. The lyrics to the tune are fortunately easily remembered after several pints:
It’s coming home
It’s coming home
Football’s coming home
While ‘Football’s coming home’ has entered the common lexicon in the UK, it is also subject to multiple trademark claims at the UKIPO, six of which are from German entrepreneurs (of course!) and one by Wembley Stadium.
Copyright conundrums (unlikely)
It is also famously sung far and wide by the adoring masses. But what of any copyright issues – would the songwriters risk an own goal and sue for any commercial misuse if there was one?
Rebecca O’Kelly-Gillard, partner at Bird & Bird in London, doubts it.
“It’s just three words, which is probably not sufficient to be an original literary work, but if somebody took the melody to the song and tried to use that then there is a potential copyright infringement because a substantial part of the song has been used, even if it’s just five seconds long.”
Sean Ibbetson, senior associate at Bristows in London, agrees that it would be difficult to succeed in a claim for copyright infringement.
“The lyrics of the song as a whole would be protected by copyright, and headlines and short phrases have also been protected in some circumstances.
“The difficulty for the authors is that they would need to show that the choice, sequence and combination of these three words was original. Where a phrase is this short, it would be a real struggle to claim copyright infringement.”
Newsflash: we think the band and the comedians are too busy lapping up the euphoria currently sweeping the nation to worry about copyright.
Who owns it: England or Germany?
In the trademark realm, things get more interesting.
Despite there being seven registrations, Lee Curtis, partner at HGF in Manchester, tells Managing IP it is questionable whether the expression could be seen as a trademark or a national saying or expression.
“I think if you just stuck it on the front of a t-shirt and did not use it as a brand, arguably that is not infringing.
“If exclusive rights could be claimed in the term, I suspect any concerted enforcement programme might be a PR disaster. The general public probably now view the term as ‘owned’ by all football fans or indeed the English nation, not any one person or company.”
But would non-English registrants be bothered by that? Six of the seven trademarks are owned by German registrants.
John Coldham, partner at Gowling WLG in London, suggests that one reason Germans might have registered the name is because of the longstanding football rivalry that was, perhaps (but probably not) settled with an English victory in this tournament’s last 16 round.
The German national team even sung ‘Football’s coming home’ during their celebrations after winning Euro 1996. You couldn’t make it up.
Coldham adds that the expression ‘Football’s coming home’ is reasonably descriptive, but has earned distinctiveness through Skinner, Baddiel and The Lightning Seeds and their Euro 96 anthem.
As a result of the song’s notoriety, Coldham suggests, if an Englishman saw the saying on a t-shirt, he would assume it had a connection with England football and the famous anthem.
“If so, others using or registering the name could be misleading consumers into thinking there is a connection when none exists. That’s what trademarks are all about – linking a particular name or slogan to a trade origin.”
Time to come home
Daniel Lim, partner at Kirkland & Ellis, says IP offices might question whether the phrase ‘Football’s coming home’ could ever be inherently distinctive when associated with anything other than a certain particularly vocal breed of England supporter, potentially significantly restricting the classes of goods or services that could be used.
"In any event, any penalties associated with violations of rights in the phrase would need to be examined closely by VAR, before being immediately upheld over any Danish protests, and promptly taken by Harry Kane, at the second attempt," says Lim.
"No Germans should be permitted to take part in penalties as that would not be proportionate to the potential damage that would cause to the English football pysche. We at Kirkland & Ellis wouldn't want to jinx anything: usage of the phrase will hopefully peak with winning the final on Sunday."
The final match will be played on Sunday, July 11, at Wembley Stadium. The staff at Managing IP ran a quick trademark search at the UKIPO and readers should note the expression ‘Football came home’ has yet to be trademarked. There’s still time…
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