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Passing off – goodwill – false product endorsement

I, a Formula One racing driver, brought an action for passing off against T, the owner of a radio station. T had sent a brochure to potential advertisers containing a photograph of I which had been manipulated to show him holding a portable radio to which the words “Talk Radio” had been added.

Held
, giving judgment for I, that there was no good reason why the law of passing off in its modern form and trade circumstances should not apply to cases of false endorsement. The court could take judicial notice of the fact that it was common for famous people to exploit their names and images by way of endorsement. The famous person enhanced the attractiveness of the relevant goods or services by his association with them, while the endorsee took the benefit of the attractive force that was the reputation or goodwill of the famous person. To succeed in a case of false endorsement, the claimant had to prove (1) that he had enjoyed a significant reputation or goodwill at the time of the acts complained of, and (2) that the defendant’s actions had created a false message which would be understood by a not insignificant section of its market that its goods had been endorsed, recommended or approved of by I. In the instant case, I, who had been well known by name and appearance to a significant part of the public, had clearly enjoyed a significant reputation and goodwill at the time when the brochure had been distributed. In addition, a not insignificant number of recipients of the brochure would have assumed that I was endorsing T’s radio station, British Medical Association v. Marsh (1931) 48 R.P.C. 565 and Henderson v. Radio Corp Pty [1969] R.P.C. 218, [1969] C.L.Y. 3555 applied Taittinger SA v. Allbev Ltd [1994] 4 All E.R. 75, [1994] C.L.Y. 4491 considered and McCulloch v. Lewis A May (Produce Distributors) Ltd [1947] 2 All E.R. 845, [1947-51] C.L.Y. 10337 not followed.

IRVINE v. TALKSPORT LTD, [2002] EWHC 367, [2002] 2 All E.R. 414, Laddie, J., Ch D.

“Current Law” June 2002