In Australian sport, the catchphrase “Come On” is almost an icon. What would a game of cricket be like without the ubiquitous Come On Aussie Come On jingle?

Sport is an integral part of the entertainment industry, and like in all industries, people are always looking for ways to cash in. Sports stars feel like they should get some benefit from their fame, and other people in the industry are always looking for ways to link themselves to that fame, and get some of the benefit themselves. And sometimes coincidences occur, creating a fortuitous linkage. So it can all get very complicated.

An episode of all this is playing out in the trade marks arena.

In January 2004, John Sheils, of Rochedale Queensland, filed a trade mark application No. 986440 covering goods relating to clothing, hats, tennis apparel, and sports equipment including tennis rackets. The trade mark was for the words “COME-ON” as a logo with the “C” representing an arm being pumped, and it was registered in October 2004.

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Sheils created the mark with the help of his daughters to be “synonymous with sport”, inspired by the Come on Aussie Come On song used to promote World Series Cricket. He states that he had no intention of linking the mark to any particular sportsperson.

In November 2007, Lleyton Hewitt Marketing Pty Ltd, of which Lleyton Hewitt’s father is a director, filed two trade mark applications, No. 1212271 and No. 1212276, covering a broad range of goods including clothing and sports equipment, for the words “C’MON”, also in distinctive logo styles.

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When Sheils found out about these marks, he got his attorneys to object in a letter, but the trade marks eventually proceeded to registration anyway in May 2009.

But Hewitt’s marketing company in December 2007 applied to the Trade Marks Office to have Sheils’ registration removed on the grounds that he had no intention in good faith to use the mark when he filed the application and that he had not used the mark since. It is a legal requirement that a failure to use the trade mark for a long period renders it liable to be removed from the trade marks register.

The Trade Marks Office hearing officer decided that Sheils’ trade mark registration should remain on the register; finding against Hewitt’s company. The evidence provided for the hearing showed that while Sheils had only a small amount of use of the mark, that use was sufficient to rebut the Hewitt’s contention there had been none, and the hearing officer could find nothing to disprove that Sheils had a genuine intention to use his mark at the date when he applied for it.

In their evidence, the Hewitts asserted that Lleyton’s use of “c’mon” and his famous fist pump “salute” (which they refer to as “the brand”) has become associated with Hewitt in the minds of the public. They have used the brand in sponsorship and promotions, and consequently Hewitt has established a substantial reputation in the brand, which implies he now owns it. Well, as far as getting a trade mark for a logo containing a representation of the brand and selling goods upon which the trade mark is applied, anyway.

To complicate these matters, there is another trade mark registration, No. 1171204, for “C’MON” in a special script, filed in April 2007 and registered in May 2009 for sports clothes and caps and the like. This mark is owned by “C’mon Pty Ltd” of Calamvale Queensland (which coincidentally is near Rochedale).

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Apparently, Lleyton Hewitt’s marketing company has taken no action against this registration, yet, despite it appearing to be even closer in appearance to their own registration.

To further complicate things, there are several trade mark registrations for “COME ON AUSSIE COME ON”, including one covering clothing and suchlike, filed in December 1978, and owned by Sky Channel Marketing Pty Ltd, and looked after by the Trade Marks Counsel of PBL Media. Considering the amount of effort put into promoting this catchphrase, it is somewhat surprising they do not want to have a say in other sportspeople and marketing companies trying to appropriate the “Come On” part of their trade mark.  Sheils and the Hewitts should be relieved that Sky and PBL, with their immense legal resources, have not entered the fray.

So, the trade mark dispute is a symptom of Lleyton Hewitt’s attempt to extract some value from his “c’mon” catchphrase and fist pump salute “brand”, and to stop others from doing something like that, whether or not based on Hewitt’s association with this. As well, cricket is also linked with “Come on Aussie come on”. So if you go and buy a cap with a “Come On” logo upon it, who will the purchaser think they are supporting, if anyone?

Sheils may have won this first round, but on June 2, 2010 Lleyton Hewitt Marketing Pty Ltd filed a second application to have his registration removed; this time apparently on a broader set of grounds — that his mark has not been used in the three years before to that application. We will have to see if he wins again in this next round.

Peter Fray

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