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Why a competing series within F1 is legal

NEWS STORY
05/07/2009

Just 24-hours after FOTA announced that it would end its threat of a rival series to F1, FIA president Max Mosley sent a letter to the World Motor Sport Council saying that "it is possible that FOTA will set up an independent series."

He clearly had a crystal ball and that is little surprise since in his letter Mosley also indicated that he may do a u-turn on his plan to not stand again as FIA president - a condition which was critical to FOTA calling off its rival series. So F1 may still face this threat but, according to Pitpass' business editor Chris Sylt, that doesn't mean to say that it won't use F1 cars.

From the inception in 2001 of the manufacturers' group, the Grand Prix World Championship (GPWC), through to its later incarnation as the Grand Prix Manufacturers Association (GPMA), there was lively media speculation over what its rival series would be called if it went ahead. It was initially suggested that the new series could be called 'GP1' but in 2005 that word was registered as a trademark by Bernie Ecclestone's private company Formula One Promotions and Administration.

In February 2005, the Daily Telegraph reported that the GPWC, according to its spokesman, was "not excluding the possibility of using the Formula One name". Of course not only did it not do this but the threat of a GPWC series ended with an agreement under which the teams' prize money doubled to the current 50% of F1's profits. However the threat of a new rival series raises the naming question yet again, and, according to one very well-placed source, the manufacturers could have played an even stronger hand by calling the cars in their series Formula One cars. FOTA, take note.

Under an agreement with the European Commission in 2001, the FIA committed in principle to attaching its name to any series, if asked by organisers, promoting a definitive competition which is properly managed, sufficiently popular and developed. In short, the FIA can not favour the FIA F1 world championship over rival series. And apparently it goes far deeper than that.

"Had the GPWC called their cars 'Formula One' they would have been in quite a strong position if the cars were built to the then F1 regulations - if a car is a genuine F1 car, it is difficult to stop someone calling it that," says the source. There is good reason for this.

The technical regulations define what constitutes an F1 car just as many other devices have regulations which they must meet in order to be named appropriately. For example, if a lock is built with certain components, which are stipulated in safety regulations, then it can legally be known as a mortice lock (dead locks to you and I). Likewise, if cars are built to the F1 technical regulations then they simply are F1 cars - there are no two ways about it. The EC ruling ensured that neither the FIA nor Bernie Ecclestone's business had exclusive hold over cars being described as F1. In fact, the EC went one step further by concluding that as a result of its changes to the sport "competing events and series within the formula one discipline will be possible."

So far so good. However, simply because a FOTA-run series could use Formula One cars, this doesn't mean to say that it could be called F1. The source says that the manufacturers would have run "the risk that Formula One Management would sue them for passing off if they in any way described their series (as opposed to their cars) as Formula One. For example a 'Formula One World Series' would have been at risk but, then, what about a 'World Series For Formula One Cars'? A lawyers' feast."

Ecclestone's ability to object comes from the fact that his Formula One series has 60 years of reputation behind it and so he could say that the rival is passing off as this. However even this has been questioned.

'Formula One' defines a class of motor racing judged according to engine size, weight and fuel capacity. However, brands which are protected by trademark law are not supposed to be descriptive of the goods or services but be distinctive of them. As a result of this, Ecclestone has failed in cases against companies which have used the F1 name.

In 2000 FOL filed a complaint to the World Intellectual Property Organisation (WIPO) about the company Formula 1 Internet which registered the 'F1.com' domain. Ecclestone claimed the company had "no rights or legitimate interests" in the domain. However, WIPO ruled against FOL saying its "complaint offers no evidence of trade mark registrations for 'F1' by itself."

This defeat didn't stop Ecclestone. He issued further court action claiming trademark infringement but the company retaliated by bringing an anti-trust lawsuit which Ecclestone unsuccessfully attempted to block by applying to have it dismissed. One month before the legal battle was due to commence in February 2002, Formula 1 Internet accepted a $10m settlement offer from Ecclestone to buy the company.

The same year, Ecclestone crashed out of another case this time against a company called ChannelF1 and, in his ruling, George Salthouse, comptroller general of the UK trademark registrar, said that Ecclestone's companies have "shown no goodwill or reputation in Formula 1 or F1 as trade marks or trade names."

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