Locations
A fan's claim to have designed, as a school boy in the early 1960s, the logo adopted by Wolverhampton Wanderers FC in 1979, has been dismissed by the High Court.
Facts
In February 2018, Peter Davies brought proceedings against Wolverhampton Wanderers FC alleging copyright infringement in his wolf head design which he argued the club had adopted in 1979. Mr Davies claimed that he had designed the logo in the early 1960s and had entered it into an art competition at the time. He alleged that it was strikingly similar to the club's 1979 logo, which must have been copied consciously or subconsciously by Ian Jackson, the designer commissioned by the club to create a new logo.
Mr Davies explanation for taking nearly 40 years to bring the action was that he had only recently come across samples of his work as a school boy.
High Court ruling
Early on in his judgment, Nugee J says he accepted that the claim was not a fabricated one and that Mr Davies had convinced himself that the football club's logo was derived from his design. However, it was difficult to have confidence in Mr Davies' evidence for a number of reasons. Some of the reasons given by the judge were specific ones relating to the evidence, but one of general application was the sheer length of time since the events relied upon took place – Mr Davies was giving evidence about things which happened over 50 years ago. Nugee J warned about the difficulties in placing reliance on the uncorroborated oral testimony of witnesses referring to the limitations of human memory, even for events far more recent, which he said was something that was now very familiar to the courts.
Nugee J was prepared to assume that Mr Davies had entered his wolf's head design into a competition, but he had not been able to prove which competition it was, or the exact design.
The judge then turned to the question of copying. He agreed that Mr Jackson's 1979 logo bore a noticeable similarity to Mr Davies' wolf head designs from the early 1960s with a stylised geometric appearance. However, referring to the well-know decision of the Court of Appeal in Sawkins v Hyperion Records Limited [2005] EWCA (Civ) 565 (concerning baroque music scores), he explained that this was not enough and that Mr Davies had to show that Mr Jackson had copied his design consciously or subconsciously.
Nugee J found that there was no plausible way in which Mr Jackson could have copied Mr Davies' design, even if the design had been accurately identified. On the contrary, Mr Jackson had come up with his design himself, uninfluenced by Mr Davies' design, and the similarities were no more than a coincidence.
Consequently, Mr Davies claim for copyright infringement failed.
Comment
This decision illustrates just how important it is in copyright infringement claims to prove that there has been copying either consciously or unconsciously for a claim to succeed, however similar the designs may look; in other words there must be a direct or indirect causal link between the copyright work and the alleged copy. The decision also shows the difficultly with relying on uncorroborated oral testimony of witnesses – this is true of any case, let alone one going back 50 years!
As well as losing a case he clearly passionately believed in, Mr Davies is now saddled with a large costs bill from Wolverhampton Wanderers, reported to be in the region of £250,000.
********
John Linneker, joint head of Fieldfisher's IP & Technology, Protection & Enforcement department, was interviewed about this case for BBC Hereford & Worcester on 23 May 2019. This was followed up by reports in the press online including BBC online, Birmingham Live and The Dundee Messenger. See also John's subsequent article Crying wolf: Is access to IP justice open to all? on our website.