Fanatics’ Aussie bucket hats, baggy greens shown as evidence in trademark court fight

Some quintessential Aussie accessories have been referred to in court during a trademark case between Warren Livingstone’s FanFirm and the Jay-Z backed American company, Fanatics.

Fanatics president Warren Livingstone, centre, with friends at the SCG. Picture: Craig Greenhill

Bucket hats and baggy greens with “Fanatics” branding sold from the early noughties by a small but popular Australian sports travel and clothing company are among the items described on day one of a trademark court fight in a bid to prove the business’s historical link with the word.

Sydney entrepreneur Warren Livingstone, who started The Fanatics in 1997, claims the $47bn US giant Fanatics breached his trademarks by selling clothing and accessories with the same branding in Australia and is suing it in the Federal Court.

Mr Livingstone’s company, FanFirm Pty Ltd, has held two trademarks for the word “fanatics” since 2008 for use on clothing and merchandise.

The Fanatics heading for Brisbane for a Davis Cup tie in 1999.

After mediation between the parties fell through last year, a trial began on Monday in what has been called a David versus Goliath case.

It’s understood the matter has already likely accumulated about $1m in legal costs.

The court heard the “genesis” of Mr Livingstone’s company began in 1997 after he attended the US Open tennis singles final in New York and met legend of the sport Pat Rafter. He formed the idea of “fanatics as a reference to people who were particularly passionate … in support of Australian sporting teams”, his barrister, Christian Dimitriadis, SC, said.

“Shortly after that he started (to) supply fanatics-branded clothes … tickets and tours to events at which supporters could wear those clothes in support of Australian sporting teams,” Mr Dimitriadis said in his opening remarks.

Tickets were sold to international sporting events including soccer world cups and cricket matches, and from 2002 the business expanded to also run “leisure tours and festivals” such as to Oktoberfest in Germany, the court heard.

As well, FanFirm sold T-shirts, pants, bucket hats, cricketing baggy greens caps and more as merchandise from the year 2000, including online via a website, Mr Dimitriadis said.

“That activity … was not merely an adjunct to the tour services. The clothing and merchandise were products supplied in their own rights,” he said.

FanFirm first filed the court case in November 2022, alleging Fanatics – which count US rapper Jay-Z as an investor – engaged in misleading and deceptive conduct in Australia by selling sports clothing with the same branding.

FanFirm has asked the Federal Court to permanently restrain Fanatics from “using the registered trademarks or any signs … substantially identical or deceptively similar” to FanFirm’s registered trademarks.

Australian supporters watch the FIFA World Cup match between Australia and Denmark in 2018. Picture: AAP

Now the case threatens Fanatics’ partnership with the AFL to become its official licence partner for 10 years – a deal that could be worth $100m to the league.

But for Fanatics, previously called Football Fanatics, barrister Luke Merrick, SC, told the court FanFirm’s focus “has been and remains on the provision of tour services” and the clothing it sells with the “fanatics” branding is linked to a specific event.

“In effect these parties have coexisted in Australia for a long time … (for) more than two decades. We say that is unsurprising because they were not competing,” he said.

“The dispute here is what caused them to change. It’s largely been brought about by what we say is a significant change by the applicant … (in its) domain name (fanatics.com.au).”

Mr Merrick, whose client has filed its own cross claim, referred to a Wayback Machine screen grab of a website from 1999, which appeared to show “checkout” and “shopping cart” options to purchase the US company’s branded clothing.

He said a fresh version of Mr Livingstone’s website was established in 2021, which was “no longer a website about the business that was historically conducted by FanFirm”.

“This site (is) now squarely directed at the sale (of) … licensed sport merchandise,” he said.

Mr Livingstone will give evidence on Tuesday, and another round of mediation could be on the table later in the week.