Eddie Irvine moves up the grid on damages claim

In Irvine v TalkSport Ltd the UK Court of Appeal has confirmed a High Court decision that a celebrity's image can be protected under the laws of passing off where there has been a false product endorsement. In doing so, the appellate court also significantly increased the damages award in the earlier decision from £2,000 to £25,000 based on a re-assessment of the evidence. This is the first time such an action by a celebrity has succeeded in the UK courts.

In March 2002 Eddie Irvine, the well-known race car driver, won a judgment in the High Court against radio station TalkSport for passing off ([2002] EWHC 367). TalkSport had used Irvine's photograph in a brochure as part of a campaign targeted at potential advertisers. The photograph had been doctored to show Irvine listening to a radio marked with the logo 'Talk Radio', creating the false impression that he had endorsed the radio station. TalkSport appealed the issue of liability and Irvine appealed the High Court's assessment of damages.

In dismissing the appeal on liability, the Court of Appeal approved the High Court's ruling that in order to succeed in an action for passing off in a false endorsement case, the plaintiff must prove two interrelated facts, namely that (i) at the time of the acts complained of, the plaintiff had a significant reputation or goodwill, and (ii) the defendant's actions gave a significant section of the market the impression that the plaintiff endorsed the defendant's goods. The appellate court clarified that it is not necessary to show that the two parties share a common field of activity or that the false endorsement will result in some financial loss to the plaintiff.

On the damages appeal issue, the Court of Appeal held that the figure should be a sum that TalkSport would in all probability have had to pay in order to do lawfully that which it had done unlawfully. In increasing the amount of damages awarded against TalkSport from £2,000 to £25,000, the Court of Appeal emphasized that the question was not what TalkSport would have been prepared to spend, but what it would have had to pay. On the evidence Irvine provided, the court concluded that £25,000 was a more appropriate award.

Darren Olivier, Field Fisher Waterhouse, London