Thursday, 8 November 2012
Image is Everything
reputation management issue, in that not an insignificant number of recipients of the brochure would assume that he had endorsed the defendant’s product. So, in light of this decision, celebrities have solid ground upon which to object to any promotional or advertising material that may suggest that they have endorsed or are associated with the products or services in question, when in fact no consent or authorisation has been given. In such cases, the remedies available are injunctive relief – i.e. the removal of the offending material from sale/circulation and damages equivalent to what the celebrity in question would likely have received for the endorsement had it been legitimate. Furthermore, following the implementation of the Consumer Protection from Unfair Trading Regulations 2008, claiming a product has been endorsed when it has not is also now a criminal offence – carrying a possible unlimited fine and up to a two year prison term. Trade Marks Trade Marks protect signs capable of distinguishing goods or services of one trader from those of another. The sign must be capable of being represented graphically (e.g. words, logos, symbols) and must be “distinctive”. Personalities who are interested in exploiting their image or brand for commercial gain are now routinely registering trade marks both to commercialise their brand and to strengthen their rights so as to help to prevent unauthorised third parties from using their names, images or other characteristics. Examples of trade marks registered by personalities include the words DAVID BECKHAM for a range of goods, including perfumes, shaving lotions, hair lotions, sunglasses, watches and precious stones; and the words GORDON RAMSAY for goods and services including, food items, condiments, menus, stationery and catering services, . However, recent Trade Mark Registry guidance and practice has indicated that a famous person’s name will generally be regarded as merely descriptive of goods which are “mere image carriers” – such as posters or stickers. Descriptive marks are devoid of any distinctive character and therefore not registrable. For example, Sir Alex Ferguson‘s application to register the mark ALEX FERGUSON was refused in relation to “image carrier” goods such as posters and stickers. The registration was, however, allowed for goods such as clothing and wrist-watches. It is easy to understand how the mark ALEX FERGUSON is considered merely descriptive of a picture bearing Alex Ferguson’s image and in instances where pictures or images are used without consent in a way which suggests an endorsement, celebrities will have to rely on the common law right of passing off. And in those instances where images are used in such a way as to suggest no endorsement it seems that there is no recourse for celebrities under either trade mark or passing off law. There may yet be some redress in the areas of privacy and data protection (in certain circumstances) as explained below. Privacy The Human Rights Act provides that all UK legislation must be interpreted in accordance with the European Convention on Human Rights. Article 8 of the Convention provides that everyone has the right to respect for his private and family life. So if publication of a photograph is likely to be particularly invasive to a personality’s private life then the Courts can intervene to prevent publication of such photographs. For example in Theakston v MGN  All ER (D) 182 an injunction was granted to prevent publication of photographs depicting a TV presenter’s brothel antics even though the Court refused to restrain publication of a verbal depiction of the story. Privacy laws will not, however, prevent the publication and/or sale of images which do not invade a person’s privacy. So, privacy law may prevent the publication and sale of photos of sports personalities’ children or personal events where such publication would be considered an invasion of privacy but would not prevent the publication and sale of posters depicting footballers playing football. Data Protection There may also be some scope to rely upon the Data Protection Act for compensation where photographs of celebrities are published without their consent. A photograph of a celebrity will be considered “personal data” within the meaning of the Act provided that person can be identified from the photograph. Further, personal data can only be processed where certain conditions are met and usually only where the “data subject” has consented to such processing. Consent can, however, be implied in certain circumstances and again where a footballer is playing a game, it is arguable that by playing the game on the public stage he has impliedly consented to personal data about him during that game being processed. However, if photographs are taken which a personality would objectively object to, then the publication of those photos is likely to be a breach of the Data Protection Act, for which the celebrity can claim compensation. Advertising Standards Finally, the various advertising codes may afford some level of media management protection to sports personalities for unauthorised use of their images. The CAP code which covers non-broadcast advertising (i.e. magazines, bill-boards etc) includes a provision that marketers should not imply personal approval for an advertised product where consent has not been given and the TV Code states that living people must not be portrayed, caricatured or referred to in advertisements without their permission. However, whilst the Codes can be used by complainants to seek withdrawal of the adverts in questions, damages are not available to the complainants – unlike in a passing off action. Conclusion Whilst we do not have a perfect “unified” system to protect image rights in the UK, the combination of the above rights and causes of action do afford a decent level of protection which enables celebrities to exploit and protect their image and brand very effectively. The above rights should form part of a comprehensive crisis management plan for sporting celebrities.
Posted by Steve Munford at 07:26