Reference:  EWCA Civ 423;  2 All ER 881;  EMLR 538
Court: Court of Appeal
Judge: Schiemann, Brooke & Jonathan Parker LJJ
Date of judgment: 1 Apr 2003
Summary: Intellectual property - Passing off - Celebrity endorsement - Image rights - Judicial notice - False message - Damages - Principles of assessment
Instructing Solicitors: Fladgate Fielder for the Claimant; Rosenblatt for the Defendant
The Defendants operated a radio station called Talksport, which had formerly been known as Talk Radio. Their marketing company sent out promotional material to a number of people responsible for the placement of advertisements. The material included a brochure featuring on its cover a picture of the Claimant, a well-known racing driver. The right to use the picture had been legally obtained, but the marketing company had doctored the picture, removing the mobile phone that the Claimant was holding and replacing it with a radio with the words “Talk Radio”. The Claimant brought an action for passing off on the basis that it understood by the market that he had endorsed the radio station. The Judge, holding that a 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, held that the Claimant did have a substantial reputation or good will and the Defendants had created a false message and so were liable.
(1) Whether the Defendants had presented the false message that the Claimant had endorsed their radio station.
(2) If so, what was the correct level of damages.
(1) The picture clearly gave the false message that the Claimant had endorsed the Defendant’s radio station. (2) The correct principles for calculating damages in a case of this kind were those identified in General Tire and Rubber Co v Firestone Tyre and Rubber Co  RPC 176. Applying those principles, in the circumstances the judge had been wrong and the appropriate award was £25,000.
This was one of the first UK cases in which a passing off action succeeded in a false endorsement case. Earlier claims had failed due to a lack of a common field of activity or no real possibility of confusion. In Irvine v Talksport, it was held that there was no requirement for the claimant and defendant to be engaged in a common field of activity. If the actions of the defendant produced a false message which would be understood by the market to mean that his goods have been endorsed or recommended by the Claimant, then the claimant can succeed in passing off. The first instance decision of Mr Justice Laddie on liability which was upheld here by the Court of Appeal (although the award of damages was increased) amounted to a significant extension of the law of passing off to encompase false endorsement claims and moves the law of the UK closer to other jurisdictions which already have a tort of wrongful appropriation of personality.