Junior Sports Associations: Trademark and Copyright Considerations

Amateur sports teams have long used designs reminiscent of professional franchises, yet legal challenges arising from such use appear relatively rare. A 2018 article describing a youth lacrosse team’s use of a Vancouver Canucks trademark, resulting in legal intervention, prompted me to consider what made this situation different. Why can some youth organizations use similar logos without consequence, while others face legal pushback? More broadly, are junior or amateur sports associations liable for trademark or copyright infringement when their uniforms adopt designs or colours similar to those of professional teams?

 In Star Athletica v Varsity, a US case, the Supreme Court held that the decorative elements on cheerleading uniforms were copyrightable because they could be identified separately from the utilitarian aspects of the uniform and exist independently as two-dimensional artwork.[1] The uniform designs were copyrightable, and Star Athletica infringed Varsity’s copyright by copying them. However, the outcome would likely differ in Canada. While there still exists a conceptual distinction between artistic features and useful articles, Canada is far more restrictive when allowing copyright to protect functional goods. Under s. 64(2) of the Copyright Act, once an artistic feature is applied to a useful article that is produced more than fifty times, copyright protection in that feature is extinguished unless the creator registers the design under the Industrial Design Act.[2] However, s. 64(3) of the Act states this exception does not apply to trademarks.[3] Accordingly, if there was an IP issue related to sports jerseys, it would likely be under trademark rather than copyright.

A trademark distinguishes one party’s goods or services from those of others in the marketplace. Professional sports teams trademark any element that functions as a “badge of origin,” including team names, mascots, word marks, slogans, and logos. Although uniform features can also be trademarked, this is only possible when they are distinctive, non-functional, and recognized as source identifiers. In Kirkbi, the Supreme Court of Canada confirmed that purely functional or utilitarian features cannot receive trademark protection.[4] As a result, the overall design of a professional jersey is unlikely to be protected, whereas specific logos may be. This distinction was central in the dispute involving the youth lacrosse team and Vancouver Canucks Sports and Entertainment.

While there are no statutory exemptions for amateur sports leagues under trademark law, liability will depend on whether the elements used are legally protected. In Canada, there must be the likelihood of confusion for a trademark infringement.[5] That is, does the defendants use of the plaintiff’s mark cause confusion. The disputed jersey included a ‘revamped’ version of Johnny Canuck holding a lacrosse stick, as well as the Vancouver Stealth logo; both of which were under trademark ownership of the Canucks. According to CSE, “the use has created confusion as we are heading into a team and logo launch for Vancouver’s new National Lacrosse League team”.[6]  It appears the combination of the Johnny Canuck logo, along with the Vancouver Stealth NLL logo, amid efforts to rebrand and establish the Stealth brand, was enough for CSE to engage the youth lacrosse team, as well as the suppliers of the jerseys, and request to have them taken out of circulation. Interestingly,

Generally, while trademark infringements occur in amateur sports, there are practical reasons which likely explain for why professional sports teams do not engage legal battles over such infringements. First, such an action would likely be accompanied by a bad press response. Sueing a youth sports league would look awful for a big brand. In the youth lacrosse example, Canucks Sports and Entertainment stated they would not go after the youth team, but rather the supplier of the jerseys. Further, they allowed for the jerseys to be worn in the tournament, provided they were handed over immediately after. This shows that while a sports team may take issue with the use of their mark, there is still a hesitance to start a legal battle with a youth league. Next, it is unlikely a professional sports team would win any money. The majority of youth and amateur sports leagues run on a low or non-profit basis. Accordingly, aligning with the public perception impact, defunding an amateur sports league to further a legal battle is unlikely to be a positively perceived action. Lastly, these ‘brands’ are not in the same market. Confusion in trademark generally requires the same market. The question is whether the casual consumer, somewhat in a hurry, seeing one mark with imperfect recollection of the other, would think the goods/services come from the same source.[7] Therefore, using this analysis it is unlikely that the casual consumer would mistake an amateur sports team or league with their professional counterpart.

In sum, while amateur and youth sports teams frequently adopt designs reminiscent of professional franchises, the Canadian law will be unlikely to find a copyright infringement when it comes to amateur sports jerseys. In contrast, trademark liability is more likely but will only arises where the elements used are legally protectable and likely to cause consumer confusion. The Vancouver youth lacrosse case demonstrates that infringement concerns become acute when an amateur organization reproduces distinctive, registered marks, especially at moments when a professional team is actively developing or redefining its brand. Notwithstanding the legal basis for enforcement, professional teams are generally reluctant to pursue claims against amateur leagues. Practical considerations like negative public relations, minimal financial recovery, and the low likelihood that consumers would genuinely confuse amateur and professional teams operating in different markets, all act as deterrents. Ultimately, while trademark law provides professional organizations with strong tools to protect their brand identity, enforcement against amateur teams remains exceptional, arising only when the use of protected marks meaningfully intersects with a professional team’s commercial interests or brand strategy.

In addition, I wanted to see what ChatGPT would create for Allard School of Law custom hockey jerseys, based on some Vancouver Canucks trademarks. I wanted to incorporate some aspect of AI into this project and could not resist the temptation. The following is the prompt I used: “I want to create renderings for Hockey Jerseys for my IP Law Class at Allard School of Law. The jerseys should have home, away and alternative designs. I want to incorporate themes of the Vancouver Canucks. I want to create 9 jerseys total, with the Canucks ‘flying skate’ design, the ‘orca’ design and the Johnny Canuck design”. I had to add “can you incorporate Allard Law and IP into it”. The results are interesting and I am intrigued to hear what everyone think regarding the designs AI created and the possible explanations for the use of certain marks, but the refusal to use other.

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[1] Star Athletica, LLC v Varsity Brands, Inc, 580 US 405 (2017).

[2] Copyright Act, RSC 1985, c C-42, s 64(2).

[3] Copyright Act, RSC 1985, c C-42, s 64(3).

[4] See decision in Kirkbi AG v Ritvik Holdings Inc., [2005] 3 S.C.R. 302, 2005 SCC 65 at para 42.

[5] Trademarks Act, RSC 1985, c T-13, s 6(2); Trademarks Act, RSC 1985, c T-13, s. 20(1).

[6] See Jon Azpiri & Neetu Garcha, “Vancouver Canucks ask youth lacrosse team to turn over Johnny Canuck jerseys used in tournament”, Global News (18 August 2018) online: https://globalnews.ca/news/4395975/johnny-canuck-lacrosse-jersey-confusion/ .

[7] Veuve Clicquot v. Boutiques Cliquot, 2006 SCC 23.