Athlete considers further action as runner ads escape real sanction

David Bedford, the former 10,000-metre world record holder, is reportedly planning to bring an action for passing off against directory inquiry operator The Number (UK) Ltd. This follows a ruling by the Office of Communication (Ofcom) that the two runners featuring 1970s hairstyles and clothing used in The Number's popular 118 118 advertisements caricatured Bedford without his permission, in breach of Rule 6.5 of the Advertising Standards Code.

The Number admitted that it had not sought Bedford's permission in relation to the ads but argued that any resemblance of the runners to Bedford was unintentional. This, ruled Ofcom, was beside the point and its decision has served to re-open the debate on image rights in the United Kingdom

The Number argued that Bedford was stopped from bringing a complaint in this case because at the beginning of the 118 118 campaign, Bedford posed for a photograph with the 118 118 runners at the London Marathon and was quoted as saying that he did not know who they were but that it was just "a bit of fun". However, Ofcom said that (i) this was insufficient to amount to a representation by Bedford that he would not complain about the ads, and (ii) Bedford's failure to complain earlier was irrelevant because silence itself cannot constitute a representation.

Despite upholding Bedford's complaint, Ofcom decided not to ban The Number from future use of the 118 118 runners. Ofcom took into account the fact that Bedford had waited six months from the launch of the ads before complaining, by which time The Number had committed itself to substantial expenditure in developing its advertising and the 118 118 brand. Also, Ofcom was of the view that Bedford had suffered no financial harm as a result of the caricature. For these reasons, Ofcom decided that a ruling banning the ads would be disproportionately damaging to The Number compared with the hurt feelings or damaged reputation of the former record holder.

In order to succeed in an action for passing off, Bedford would need to demonstrate, as Eddie Irvine did in his action against Talksport (see Eddie Irvine moves up the grid on damages claim, that (i) at the time the ads were run he had a substantial reputation or goodwill, and (ii) The Number had created the false impression that he endorsed, recommended or approved of The Number's products and services.

The Number has now scrapped the runners from its ads. The Number insists that the change had nothing to do with Bedford's threatened proceedings - even though The Number has reportedly paid the Aberdeen Amateur Athletics Club an out-of-court settlement relating to the same set of ads. The club's kit features a two red-stripe singlet identical to that used in the 118 118 runner ads.

Alison Willis, Hammonds, London