When an individual buys a computer game specifically to do with football they will want that game to be as realistic as possible. Accordingly the following two elements are factors which can make a game seen more realistic:
- The use of the players’ names
- The use of the players’ images
The use of the players’ names
How can a player protect the use of their name?
Some football players have protected their name as a trademark ensuring that the use of it by anyone other than a designated source will be infringing that mark. However, it is not a guarantee that all footballers will be able to register their name as a trademark. In order to be able to register a trademark it must be shown that the mark is distinctive.
Not every footballers name will however, be considered distinctive enough to attract trademark protection.
If a footballer has his name protected as a trademark can he prevent his name being used in a football computer game without his permission?
In order to show trademark infringement the player will have to show the following:
- That the mark was used in the course of trade or business
- That the use falls within one of the infringing acts specified by the Trade Marks Act 1994
What are the infringing acts specified by the Trade Marks Act?
The infringing acts which are specified by the Trade Marks Act are as follows:
- The use of an identical mark on identical goods and services
- The use of identical or similar marks for identical or similar goods and services
- The conflict with a mark of repute
Would the use of a player’s name infringe a trademark in this manner?
When a football player registers his name as a trademark in the most part this will be able to stop the use of the name on the kind of product that would be endorsed by the player. If his name appears on other similar goods then this would clearly weaken the strength of the mark.
The use of a player’s name in a computer game capacity falling within one of the above is something which would be likely to attract trademark infringement. This is often why we see many computer games unable to use the official names of football players.
How is it that some computer games do not have the official names and some do?
The world governing body of football – FIFA – is one party which occupies a dominant stake in the computerised football game market as they produce along with a gaming company the official FIFA game.
It is this game which has all of the official player names whereas other games in competition with this game do not have the ability to use the official names.
Why is this the case?
As the game produced by FIFA is the official game on behalf of the world governing body of football it follows that the official names of players and clubs should be used in the game. Accordingly FIFA has the appropriate licences in place which will negate any rights that the players have in exploiting their own names on an individual basis.
For example when FIFA issues the official game for the 2010 World Cup they will have the appropriate licence to use the names of all of the players participating in the tournament regardless of any individual protection the players may have.
The use of the players’ images
How can a football player protect the use of their image?
Currently under the laws of England and Wales there is no general protection for the use of a person’s image. There is no specific law concerning image rights. However, the best protection that can be used for an individual’s image is the tort of passing off.
What needs to be proven for the tort of passing off?
In order to prove passing off it must be shown that the use of an individual’s image led to a misrepresentation that the individual was in fact endorsing the product.
Would this apply to the use of a footballer’s image in a computer game?
If a picture of a certain football player was used on the box of a computer game and the use was not authorised by the player it is likely that a claim for passing off would be found. It would be reasonable to assume that the use of the player’s image would create a misrepresentation amongst the general public that the player was in fact endorsing the product. This is due to the fact it is commonplace for an official image of a footballer to be used on the front of the game when he is in fact endorsing the product.
Can this extend to the use of an image within the game?
The use of a players image within the game would be unlikely to cause a misrepresentation that the player was in fact endorsing the game as images of many players will be used meaning the connection of one specific player endorsing the game would be unlikely to be found.
This is the reason why in many games which do not have an official licence in the same capacity as FIFA cannot use the correct names of players but they can ensure that the player in the game looks extremely similar to the correct player.