The English soccer season begins this coming weekend and fans will be rushing to purchase the latest replica shirts of their favourite clubs.

This will be true even where fans' favourite players have moved to sunnier climes during the off-season, or have showed up at training unable to fit into the shirts themselves due to a summer of indulgence punctuated by too many pies.

For the most part, it is clear that fans' allegiance is to the commercial brand rather than to a particular player. Although the game has existed for many years, it was not always a commercial enterprise.

In the Victorian era teams in England began as a group of friends or workmates playing for pleasure and eventually developed into a 'club' of organised amateurs supported by the local community. Only after a considerable period of time did players become professionals and the team a business with income and expenditure.

Early in their history teams acquired a name and colours that enabled the team to recognise each other on the pitch and over time fans began to identify with these. Due to the way the game developed, the colours and crest were never regarded as being of any great financial value.

The advent of mass communication changed all that. Professionals began moving into the boardrooms of clubs and where amateurs once sat there were accountants and businessmen who wanted to see a balance sheet with assets and income. Today, names, colours and logos all form a critical part of a club's assets.

They are trademarks in the truest sense as they clearly identify the club and everything associated with it. Any trademark is capable of ownership and it is logical to assume that as the association between the mark and the club is so clear, that if anyone is to own the mark it should be the club. Or is it?

Fans have always used the name and logo in their own manner as seen in the banners that are still created today. As a young man the writer remembers purchasing scarves and rosettes outside St James' Park when attending Newcastle United games.

They were items made by private individuals who traded openly outside the ground. It is only within the past 30 years that clubs have realised the value of these assets and have taken action to protect them as you would an ordinary trademark.

If the companies that now own the clubs did not create the marks, and if for the greater part of their existence they acquiesced in others using the marks on a variety of items, how can they now own them?

In a recent Court of Appeal case between Arsenal Football Club Plc v Reed the Court upheld the right of the club in their action against a street trader who sold items that included a registered trademark belonging to the club.

It is interesting at this stage to note that the earliest trademark registered by Arsenal Football Club Plc was the word 'Arsenal' in 1989. This was despite the fact that workers at the Royal Arsenal in Woolwich formed the club in 1886 albeit under a different name.

Mr. Reed argued that it was not a trademark as such but merely a badge of support. His argument was not assisted in that he was using the identical mark on the same goods for which it had been registered and fans had brought these items into the club shop to complain about their quality.

The Court of Appeal found for the club. A third party's use of a trademark does not have to be "trademark use" (i.e. use in a manner that indicates the commercial origin of the goods bearing the mark) before it can be held to infringe the registered trademark proprietor's rights.

Mr. Reed had argued that the use of the word "Arsenal" was as a 'badge of allegiance' to the club, and not so as to indicate that the goods came from the club.

The Court of Appeal concluded that this was not relevant. Registration of a trademark gave the proprietor a property right and the relevant consideration was "whether the use complained about was likely to damage that property right".

Lord Justice Aldous declared that "Unchecked use of [a mark by a third party … is likely to damage the function of the trademark right because the registered trademark can no longer guarantee origin".

This is so, despite the fact that the current 'owners' of the club never really decided upon the colours and name, and the clubs were never originally commercial organisations. Even though many fans have in the past created items for sale to other fans, the current owner of the registered marks can hijack all this history and turn it to their profit.

One hopes that it will be the clubs that benefit.

Attorney Graham Wood is an Associate and member of the Telecommunications & Technology Team within Appleby Spurling & Kempe's Corporate/Commercial Department. Copies of Mr. Wood's column can be obtained on the Appleby Spurling & Kempe website at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.