OPINION: Why MPs can face a tough time protecting their name

Why should Pamela Anderson be able to ban posters showing her with green ears, or demon eyes, but Tony Blair seemingly can’t? Nick Allen outlines the problem

Why should Pamela Anderson be able to ban posters showing her with green

ears, or demon eyes, but Tony Blair seemingly can’t? Nick Allen

outlines the problem



Imagine opening your morning paper and seeing a full-page ad consisting

of a photograph of the Baywatch actress, Pamela Anderson, with a huge

pair of pointed green ears superimposed on it.



‘Surely they can’t get away with that?’ you might ask. And unless

Anderson had consented to this portrayal, you would be right.



English law isn’t very sophisticated in this area. For example, there’s

no right of privacy in such a case. But mechanisms do exist whereby an

outraged Anderson would be able to take legal action to prevent such a

campaign continuing.



Passing-off is an established but rather nebulous legal remedy that

protects goodwill or commercial reputation.



Traditionally, this has been used to protect the goodwill relating to a

brand or a trading name by preventing competitors from using the same or

a similar name.



However, the prevailing wisdom among legal experts in this area is that

passing-off can be used to protect the goodwill a personality has in

relation to the use of their name or image.



So Anderson could protect herself by threatening legal proceedings in

respect of passing-off against the company that makes the product. But

how does this differ from the superimposition of demonic eyes on to a

photograph of the Labour leader, Tony Blair, by the Conservative Party?



In practical terms, there’s no difference, but there is a legal

distinction. A successful action in passing-off relies on a number of

components, one of which is proof of potential damage to goodwill.



Inevitably in such an action, the evidence will have to show that

members of the public are likely to be confused that a personality is

involved in the endorsement of a campaign.



Although you may have wondered if Anderson consented to the

superimposition of pointed green ears, it’s improbable that you would be

similarly confused about Blair and the demonic eyes.



From a legal standpoint, it’s generally accepted that certain types of

personalities are unlikely to prove the necessary element of goodwill

(that’s to say, the right to make money from endorsing products)

necessary for a successful action in passing-off.



For example, certain categories of famous people, such as convicted

murderers and prominent politicians, don’t usually endorse products and,

therefore, have no goodwill relating to product endorsement rights to

protect.



So the likelihood is that Blair would be unable to launch a successful

action against the Conservative Party. Nevertheless, he has won the

backing of the Advertising Standards Authority, which ruled that the

poster should be withdrawn because the Tories didn’t ask Blair’s

permission to use his photograph with red eyes superimposed on it.



The ASA allows the Conservatives, Labour and Liberal Democrats a pretty

free rein and exempts them from some of the rules applying to other

advertisers.



Nevertheless, one provision of the ASA code that still applies to party

political advertising is that advertisers are urged to obtain written

permission in advance before they portray any identifiable individual in

an ad. Clearly, Blair would not have given Conservative Party Central

Office permission to use his photo in the ‘new danger’ campaign.



My advice to Blair, John Prescott and Peter Mandelson is that they have

the option to evoke rule 13.1 of the Code of Advertising Practice in

future disputes.



On the other hand, Labour may prefer to sit tight and reserve the right

to use photographs of rival politicians in its own campaigns - as it has

done in the past.



Nick Allen is a partner at the law firm, Edge and Ellison



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