Character, personality and image merchandising

Misc
1. cases
  1. defence of no common field of business - ok --- (stop the use of names from a TV series to sell merch (jeans and restaurant services) - C's business was only with TV - D is not in competition with C - DALLAS - SOUTH FORK)
  2. recognised practise of celebrity endorsement --- (C was in business of granting licences to use his image - like approved)
Copyright
1. character
  1. drawing
    1. limitation
      1. if exploitation by an industrial process
      2. protection reduced to 25 y
      3. NOT infringement of any (C) in a design document or model recording a design for anything other than an AW to make an article to the design
      4. m.b. included 2D copy of a 3D article made to a design - arguably! - sought summary judgement --- (Telly Tubbies - applied on T-shirts - 2D, not 3D)
      5. difficult case!
      6. arguably design was applied to an article, not used to make the article
    2. issues
      1. m.b. 2D - 3D --- (POPEYE)
      2. NOT ideas
      3. BUT! still
      4. concept of humanoid turtles for T-shirt design infringement
  2. sculpture
    1. test
      1. maker must be concerned with shape and appearance rather than just with achieving a precise functional effect --- (The cartridge looks like a double-barrelled hypodermic syringe)
      2. Purpose of a sculpture - visual appeal - enjoyed for that purpose alone, whether or not it might have another purpose as well. Purpose of the creator - the artist's hand. Intrinsic quality of being intended to be enjoyed as a visual thing. Whether the maker intended the object to have a visual appeal for its own sake
    2. e.g.
      1. wooden model prototype for a plastic frisbee
  3. a work of artistic craftsmanship
    1. test
      1. author was both a craftsman and an artist
      2. must possess artistry
      3. eye appeal
      4. by intention of the author
      5. must appeal to the aesthetic, not make a particular expression, appeal as a piece of art
      6. intended to sustain close scrutiny
      7. made by artist
      8. person with creative ability who produces something which has aesthetic appeal
      9. must be made by a craftsman
      10. person who makes something in a skilful way and who takes justified pride in his workmanship
2. name
  1. no (C) in a single word
3. image
  1. use image from a film to make a poster - infringement
TM
1. names
  1. m.b. difficult
    1. m.b. not distinctive, but descriptive. Association with a person, not company - part of the product - not the source - no connection with the company - simply commemorates the person in question
      1. BUT! m.b. ok if signature
      2. BUT!
      3. m.b. better chance after --- (m.b. other functions - e.g. badge of loyalty)
    2. may depend on carrier
      1. better
      2. books, sound rec, films
      3. if implies some control or guarantee
      4. worse
      5. mere image carriers (posters, etc.)
      6. seen simply descriptive of subject matter
2. 3D TM
  1. m.b. difficult
    1. shape gives substantial value
      1. collectibles
3. on promotional goods
  1. m.b. not sufficient to protect from revocation --- (WELNESS - drinks given away when bought T-shirt)
4. use on merch m.b. not 'trademark use'
  1. e.g. merely decorative --- (slogan on T-shirt)
    1. BUT!
      1. better chance if TM with reputation --- (stripes - infringement)
Passing off
1. problem with harm
  1. other jurisdictions
    1. Hong-Kong
      1. same line of business --- (2 film producers - character - one-armed swordsman - infringement)
    2. Australia
      1. common field is not necessary
      2. enough that deprived the right to approve the product for a fee --- (ballroom dancers - music record with their photo)
  2. UK
    1. no common field
      1. e.g.
      2. no common field
      3. different businesses --- (children TV programme and waste removal - no common field - no infringement)
      4. (TV programme - sweet manufacturer (he had goodwill!)
      5. even real names
      6. common field
      7. enough if gives licences for toys, not produce himself. Also "lousy imitations"
      8. same as MUPPET concept of humanoid turtles for T-shirt design infringement --- (misrep that goods are genuine - misrep that goods were licensed - because well-known)
      9. must show
      10. people would think that the goods were licensed and
      11. bought them on this basis
      12. BUT!
      13. not extended to personality merchandizing
      14. alternative
      15. failed
      16. damage in others not asking licences - held no evidence --- (JUDGE DREDD)
      17. succeeded
      18. Endorsement - tells the relevant public that he approves or is happy to be associated with it recognised practise of celebrity endorsement --- (C was in business of granting licences to use his image - people would think that endorsed)
      19. BUT!
      20. even if involved in licensing business, no infringement if simply hint at 'official' approval or sponsorship - if no origin confusion - public must have mistaken belief that C actually endorsed the product
      21. Clark already published some of his memoirs - had reputation as an author - worthy of protection
Breach of confidence and privacy
1. no general right to privacy
  1. BUT!
    1. m.b. under HRA
      1. BUT!
      2. not if public ofice
      3. misuse of personal information
      4. requirements
      5. reasonable expectation of privacy - objectively
      6. public places
      7. unlikely
      8. BUT! m.b. if surreptitiously
      9. private premises
      10. likely
      11. defences
      12. defence
      13. set the record straight
      14. NO defence
      15. not merely reveal conduct which some would find distasteful
    2. m.b. if argue commercial breach of confidence
2. injunction
  1. more likely for photographs, because invade privacy each time the photo is published