The fur has been flying as two very different organisations lay claim to the same name.
"The World Wildlife Fund", as it used to be called, has built up a world-wide reputation for environmental protection since it was established in 1961. It changed its name in 1989 to "The World Wide Fund for Nature", but still uses everywhere its registered trade mark "WWF". It usually does so in association with its well-known panda symbol.
Unfortunately, the initials WWF are also associated these days with less cuddly beasts in the form of the World Wrestling Federation. This organisation was founded in the early 1980s and is, in its own words, "involved in the sports entertainment business". Wrestling has become a very popular form of entertainment.
As the World Wide Fund predates the World Wrestling Federation by some 20 years, and given the absence of any shared business, the more established Fund should not have been much bothered by the newcomer Federation. The two bodies might have expected to coexist peacefully, even to ignore each other.
Alas, in modern business globalisation and market-convergence mean that brands conflict with each other more than ever before and by 1994, the Fund and Federation had clashed several times over their claims to the initials WWF.
Partly this was an inevitable result of sensible trade mark management, with neither party wanting to lose ground to the other unnecessarily. Partly it was because the Fund had become concerned that the Federation's image was anti-thetical to its own; any misassociation with the Federation might tarnish the Fund's reputation among its more than 4.5 million individual contributors.
This concern was not merely cultural: in 1992, the Federation had been investigated by the US Justice Department and charged with illegal possession of anabolic steroids with intent to supply, and with conspiracy to defraud the Food and Drug Administration. Clearly, this was not something with which the world's largest private international nature organisation would want to be connected.
In order to ensure that the two organisations operated as far as possible in separate spheres of commerce and influence, the Fund and the Federation drew up an agreement that restricted the Federation's right to use the acronym WWF. For three years or so this worked, but by 1997 the Federation was flouting its obligations increasingly often and in more and more territories. A particular bone of contention was the Federation's recent adoption of the domain name www.wwf.com (the Fund, meanwhile, uses www.wwf.org) in contravention of its agreement not to use the initials, whether in printed or visual form, to promote its business.
The Fund sued for breach of contract, claiming damages and an injunction to force the wrestlers to abide by the terms of the 1994 agreement. The Federation admitted that it had breached the agreement, but argued that it could do so as the restrictions were unenforceable under English law they were an unreasonable restraint of its trade and under European law they were anti-competitive. (Article 81 of the EC Treaty prohibits cartels and similar carving-up arrangements between enterprises).
Mr Justice Jacob, in the High Court in London, considered restraint of trade. He said that since the restrictions had been imposed as pro of a negotiated settlement of an intellectual property dispute, they could only amount to a restraint of trade if the Federation could show that they imposed a "real fetter" on its trade and went beyond what was reasonably needed protect the intellectual property in question (the Fund's rights in WWF).
Since the restrictions limited how the Federation could trade in the future, they did indeed amount to a fetter and so the court had to consider the scope of restraint imposed by the 1994 agreement. In this case the judge found the restrictions were not very restrictive - the Federation had been able to operate within them for several years, during which time it had actually increased its turnover.
The World Wide Fund for Nature had good reason to fear any association with the Federation, which, in the words of the judge, had "a very insalubrious image". It was also legitimate for the Fund to try to restrict the Federation's use of the initials WWF in marketing as both organisations were engaged in merchandising. So the Federation's arguments under English law failed.
On the Federation's contention that the 1994 agreement was anti-competitive under article 81, the judge held that this was simply a non-starter. There was no reason not to grant the Fund the injunction it sought.
Although the exact wording of the injunction has yet to be finalised, one of the immediate consequences is likely to be that the Federation will not be permitted to use its www.wwf.com website. The injunction is also likely to prohibit the Federation's use of WWF (both in upper and lower case) on its logos. Although it will still be permitted to use its full title, the costs associated with this global rebranding have been estimated at £35m.
The judgment underlines the English courts' support for consensual solutions to trade mark conflicts. Although the danger with such solutions is that they can restrict one party's freedom to expand its business (as the Federation has found out here, and as Apple Computers discovered in its long-running spat with the Beatles' Apple Corps), they do at least provide a measure of certainty and the courts have little sympathy with an organisation that realises, too late, that it has struck a bad bargain.
Unsurprisingly, the World Wrestling Federation has already announced its intention to appeal. But it seems so far that the law is on the side of the panda, and all the Federation's commercial muscle is of no avail.
First published in Brand Strategy in October 2001.