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Duncan Wiggetts reports on the BBC's attempts to protect its reputation in sports broadcasting BBC v talkSPORT
In an important decision in June, Justice Blackburne drew a line in the sand on the ambit of "protectable goodwill". The learned judge did so by refusing to grant injunctive relief to the BBC to stop talkSPORT using simulated crowd noises alongside its live commentary of Euro 2000 football matches based on television pictures.
As it had exclusive rights to broadcast live coverage from within the stadia, the BBC argued that talkSPORT, by using the word "live" and by its clever use of simulated crowd noises, was misrepresenting the nature of its broadcast to the public.
This was despite talkSPORT adhering to previous voluntary undertakings where its commentators informed listeners at frequent intervals that the commentary was from its "TV monitors in the Amsterdam studio".
The BBC claimed that talkSPORT was guilty of passing off its coverage as in-stadia coverage and that, in turn, damaged the BBC by devaluing the attraction of "live sports broadcasts" and the BBC's long established reputation as "a skilled broadcaster of live sporting events".
After reluctantly reliving the highlights (and lowlights) of the England v Portugal match as covered by talkSPORT, Justice Blackburne held (distinguishing the Chocosuisse case) that there was no protectable goodwill in the BBC's reputation as a quality broadcaster of live sporting events as this was an activity that was not sufficient to found a cause of action.
The judge went on to hold that it is only the indicia by which an activity is known, which, if sufficiently established and distinctive, can provide the essential requirements of goodwill. Expressions such as "live coverage of sporting events" are no more than descriptions of an activity.
Justice Blackburne also rejected the BBC's claim to have suffered damage as a result of talkSPORT's coverage and indicated that, even if there had been an argu-able case on goodwill and damage, the balance of convenience clearly favoured talkSPORT, as its coverage of Euro 2000 would have been effectively "killed off" by any injunction.
The BBC's subsequent appeal has been withdrawn on revised undertakings with the matter to go to trial later this year.
Duncan Wiggetts is a senior assistant solicitor in the commercial litigation department at Herbert Smith.