Celebrity sponsorship ranks as a powerful marketing tool, with the likes of Jamie Oliver and Gary Lineker significantly contributing to their respective sponsors, Sainsbury’s and Walkers Crisps. This makes the fact that there is still no consolidated English law on the subject all the more surprising. We even have trouble deciding whether to refer to ‘celebrity’, ‘personality’, ‘character’, ‘publicity’ or ‘image’ rights. Publicity and image do perhaps make the point more clearly and avoid the difficult label of ‘personality’.
Actionable passing-off requires that the claimant has goodwill, the defendant has made a misrepresentation likely to confuse the public into associating his products or services with those of the claimant and there is loss or the material prospect of loss to the claimant. The case of McCulloch v May [1947] – known as the ‘Uncle Mac’ case – which suggested the additional need for a ‘common field of activity’ – was rejected by Mr Justice Laddie’s decision in Irvine v Talksport, upheld, with increased damages, on appeal. Whatever the intention of Talksport, it was enough for Irvine to establish a significant commercial image and reputation in relation to which Talksport had made a false representation; it was unnecessary to show a common field of activity between the parties. The decision was also based on false endorsement, involving implicit celebrity approval and association with the product, as distinct from mere merchandising, leaving passing-off as a still less than fully secure route of protecting image rights.
