The Lawyer Africa Elite 2014 features an in-depth look at 46 leading independent firms’ strategies in 15 key sub-Saharan jurisdictions, as well as the views of in-house counsel from some of Africa’s largest companies... Read more
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Elvis may be long dead, but his name lives on - and profitably. Souvenirs bearing "The King's" name are still in huge demand among fans across the world, both young and old.
Now his name has been at the centre of a fierce legal battle in the High Court's Chancery Division, which has resulted in a sign-post ruling for the merchandising industry.
Stephen Whybrow, IP partner with McKenna & Co, and counsel Richard Meade, played a key role in masterminding victory for Sid Shaw of Shoreditch in his fight with Memphis-based company Elvis Presley Enterprises (EPE). And Whybrow says a number of significant pointers emerged in the ruling of Mr Justice Laddie.
For Shaw, who estimates turnover from his Elvisly Yours souvenir shop at a modest £250,000 a year, the victory came at the end of a battle which has gone on for 14 years and has sweetened the bitter pill of defeats in courts on the other side of the Atlantic.
The case centred on moves by multimillion-pound turn-over EPE, which is headed by Elvis' ex-wife, Priscilla Presley, to register the name "Elvis" and a manuscript version of the signature "Elvis A Presley" at the Trade Marks Registry. Shaw opposed the move, and later appealed against the Registrar of Trade Mark's dismissal of his opposition to EPE's application.
Now, after his court victory, he can use the name legitimately on a range of toilet products he markets. But Shaw is expected to make further legal moves to extend the scope of the products he can use the name on.
Stephen Whybrow pinpoints the judge's views in rejecting EPE's claims to the right to exclusive use of the names, and his comments on the expectations of the merchandise buying public as being of major interest in merchandising.
As far as the name was concerned, the judge said that even if Elvis was still alive he would not be able to stop a fan from naming his son, his dog or goldfish, his car or house "Elvis" simply because it was the name given him at birth.
"Just as Elvis Presley did not own his name, so as to be able to prevent all and any uses of it by third parties, so EPE can have no greater rights," he said. Judge Laddie added that Presley had also not owned his appearance, so would also have been unable to prevent a fan putting a drawing of him on his car.
EPE's solicitors had argued that, when it came to merchandising, the public expected what they bought to come from official sources. But, rejecting that argument, the judge said the public "did not give a toss" about the source of what they bought. A purchaser of a Royal wedding souvenir was likely to be indifferent as to its source, he said.
Whybrow says: "The observation that the judge made that will probably cause most concern to the merchandising industry was that he was not prepared to assume that because someone buys a memento they necessarily do so in the belief it comes from some genuine or authorised source. This could be pretty devastating for many merchandising businesses. There will be circumstances where people may assume a product comes from a source it does not come from."
It is, Whybrow claims, a case of general interest to the merchandising industry, trade mark agents and intellectual property practitioners alike.