Rosicky gets a kicking, but breaks no bones; Bovver at Bovington Market leads to conviction

LexisNexis Butterworths picked this little case up last week: Nike European Operations Netherlands BV v Rosicky, a Chancery Division decision of Mr Justice Patten on 9 August.

Tomas Rosicky (right), an Arsenal footballer, struck a two-year deal with Nike under which he agreed to wear only Nike's products - including its football boots. This contract, made in the Netherlands under Dutch law, gave Nike the option to extend it for a further two years. Rosicky later struck a deal with Puma, a bitter commercial rival of Nike, under which he was paid to wear Puma football boots instead.

The question arose as to whether the fleet-footed footie star was still bound by his contract with Nike. Nike said it had written both to Rosicky and to his agent, purporting to exercise the option. Rosicky however said he didn't receive the notice until after the period for giving it had expired. Nike sued him for breach of contract in the Netherlands and also applied in England for an interim injunction to stop Rosicky wearing Puma boots in the meantime.

Left: Following some well-publicised incidents involving football boots and metatarsals, most British males can name more bones in the foot than members of Prime Minister Gordon Brown's cabinet.

Patten J allowed Nike's application and granted interim relief. In his opinion, the balance of convenience was in favour of granting an injunction:

* it was not possible to put a price on the value to Nike of having its footwear brand displayed on Rosicky's feet, so an injunction would be the appropriate remedy if, following the full trial, Rosicky was found to be in breach;

* viewed from Rosicky's position, since the allegation that he had breached his contract raised the issue of his reputation, damages might not be an appropriate remedy;

* Nike had a sufficiently strong case to justify seeking relief and was likely to suffer more damage than Rosicky if the status quo was not preserved until trial.
The IPKat finds this decision interesting. Since a footballer is a skilled performer whose ability to perform depends upon a high level of fitness, skill and confidence in one's equipment, one might have thought that his personal choice of boots that were the most comfortable, efficacious or best able to protect him from any risk of Nike Broken Footbone Syndrome (see here, here and here) would override the mere contractual entitlement to the exposure of a brand. Merpel says, footballers come, footballers go - but brand loyalties endureth forever.

This FACT press release reached the IPKat via Simon Haslam: it cites a recent decision of the St Albans Crown Court, a little way outside London in the formerly Roman-occupied territory of Hertfordshire, which could prove hugely significant as the UK's creative industries step up their fight against copyright crime. The court found that the owners of Wendy Fair Markets were guilty of money-laundering charges after profiting from the sale of pirate product in Bovingdon Market (right). Sentencing takes place next month. According to the press release

"The case was brought by Hertfordshire Trading Standards after the BPI and FACT uncovered evidence that the defendants and company were benefiting financially from the illegal sale of counterfeit DVDs, CDs, and computer software at Hemel Hempstead's Bovingdon Market. It marks the first time a market operator has been convicted of accepting - in the form of pitch rents - money it knew, or suspected, had been earned through criminal means. Both the company, Wendy Fair Markets Ltd - who operate 17 other UK markets, including music and film piracy hotspot Wembley Market - and the directors, could lose their assets as they are now vulnerable to a claim under the Proceeds of Crime Act. ..".

The IPKat is pleased to see this and hopes that it will act as a spur and an incentive to other trading standards authorities to commit their limited and overstretched resources to the pursuit of the bigger players in the piracy business and not just the easy targets like the people selling fakes on stalls and at car boot sales.

History of the name Wendy here
Rosicky gets a kicking, but breaks no bones; Bovver at Bovington Market leads to conviction Rosicky gets a kicking, but breaks no bones; Bovver at Bovington Market leads to conviction Reviewed by Jeremy on Friday, August 17, 2007 Rating: 5

1 comment:

  1. There was a similar spat a few years ago between Umbro and Steve MacManaman, which I was involved with. Umbro also succeeded in getting an interim injunction. I suspect that the argument that is raised by the IPKat appears somewhat hollow when only raised by the player following the switch and in the face of litigation.

    Judges seem to understand the way things happen in the world of football – even if the so called “authorities” appear clueless – and I am not a Blades fan!


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