It was reported that legal action was being considered by the athlete after Ofcom decided the directory inquiries operator had caricatured the 1970s star in its television advertising campaign. The Number, which runs the 118 118 service, became a household name after the success of its eye-catching ads starring two runners with long hair and droopy moustaches. The watchdog found that the two did caricature Bedford “by way of a comically exaggerated representation of him looking like he did in the 1970s, sporting a hairstyle and facial hair like his at the time”.
Also, The Number had fallen foul of the Advertising Standards Authority code which states that living people must not be portrayed, caricatured or referred to without their permission. However, Ofcom did not ban the campaign on the grounds that such a move would be “disproportionately damaging” to The Number when considered against the harm to the runner.
Mark Buckley, a partner at Fladgate Fielder, acted for Formula One racing driver Eddie Irvine in a challenge which led to a groundbreaking judgment in the Court of Appeal. He successfully sued Talksport Radio, who used a doctored, unauthorised image of the racing driver to endorse their radio station, for passing off. This was the first time such an action by a celebrity had succeeded. Last April, the Court of Appeal increased the amount of damages awarded against Talksport from £2,000 to £25,000 plus costs, saying that the figure should be a sum which was the price that Talksport could reasonably have been charged for permission to do the infringing act.
“Bringing a legal action is obviously a very different situation to making a complaint to the Advertising Standards Authority,” Buckley told Law Zone. “You have to fit into existing intellectual property rights because there is no law addressing image rights per se in the UK.” The lack of a specific law relating to image rights has led to legal actions to protect celebrities’ image rights through arguments based on, for example, trademark infringement, passing off, breach of advertising regulations and copyright infringement, often with very little success. Consequently, the success of the Irvine action, based upon passing off, was significant. According to Mr Justice Laddie, the driver had “a property right in his goodwill” which he could protect “from unlicensed appropriation consisting of a false claim or suggestion of endorsement of a third-party’s goods or business”.
“For the offence of passing off you have to show the three basic requirements,” Buckley explained. It requires that the claimant has goodwill, the defendant has made a misrepresentation likely to confuse the public into associating his products or services with those of the claimant and there is loss or the material prospect of loss to the claimant. There should be little problem with the first requirement, however showing misrepresentation “might be a bit tricky”, the lawyer said. “The classic way to do that is to get the punter off the street to say that they were confused and thought it was a genuine endorsement, but here the ads have such notoriety as a spoof that they would find it difficult to get witnesses,” he said. As for damages, the lawyer said that in the Irvine case there “was a theoretical chance of damage if he lost potential future contracts.”
“Mr Justice Laddie said the law had to reflect the marketplace,” said Buckley. “And celebrity endorsement is now very big business and so the courts are moving towards trying to protect celebrity image rights.”