The Australian Football League (AFL) presently has eighteen teams in its competition, and there has been discussion for several decades about the prospect of a Tasmanian team. The creation of a Tasmanian team at the elite professional level of AFL is long overdue. Tasmanian’s after all have played football longer than Victorians – since the early 1850s. It is therefore significant that on 16 May 2019 the AFL filed a trade mark application for a new Tasmania Devils logo. Here is an extract of the application:

Trade mark registrations create and embody statutory ownership rights in brands. For the AFL, its teams’ brands are the cornerstones of its IP portfolio.

But the AFL is the elite football competition in Australia, worth hundreds of millions of dollars – and indeed, some of its team’s brands are worth tens of millions of dollars (see Smart Company’s article, Australia’s most valuable sporting brands) . Suburban sporting clubs are figuratively and literally not in the same league. Why should small sporting clubs care about trade mark registrations?

Below is an extract of the current trade mark application made by the Northern Warriors Veterans Football Club, based in the northern suburbs of Perth:

The Warriors are very attached to their club insignia, having been in existence since 1982. It embodies their heritage as a successful sporting club. Licensing and enforcement are two major reasons why any business registers a trade mark, but the Warriors are extremely unlikely to ever license their trade mark, nor ever wish to enforce it against a rival. The main purpose of its trade mark registration is defensive. Under no circumstances would the club want to be compelled to change its name or logo by a larger, well-resourced sporting club or association. Instead, the Warriors rely upon Section 23 of the Trade Marks Act 1995, which says,

“If trade marks that are substantially identical or deceptively similar have been registered by more than one person (whether in respect of the same or different goods or services), the registered owner of any one of those trade marks does not have the right to prevent the registered owner of any other of those trade marks from using that trade mark except to the extent that the first-mentioned owner is authorised to do so under the registration of his or her trade mark.”

Unlike the AFL, which will no doubt make millions of dollars out of the sales of Tasmania Devils merchandise, the Warriors are instead after peaceful use and enjoyment of their brand and heritage. This is a goal to which most sporting clubs should aspire.