Irvine and another v Talksport Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker,Lord Justice Brooke,Lord Justice Schiemann |
| Judgment Date | 01 April 2003 |
| Neutral Citation | [2003] EWCA Civ 423 |
| Docket Number | Case No: A3 2002 0836 and 1066 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 April 2003 |
[2003] EWCA Civ 423
Lord Justice Schiemann
Lord Justice Brooke and
Lord Justice Jonathan Parker
Case No: A3 2002 0836 and 1066
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION (Mr Justice Laddie)
Mr Michael Briggs QC and Miss Lindsay Lane (instructed by Messrs Fladgate Fielder) for the Claimant/Appellants
Mr Murray Rosen QC and Mr Stephen Tudway (instructed by Messrs Rosenblatt) for the Respondent
INTRODUCTION
Before the court are an appeal and a cross-appeal in a passing off action brought by Mr Eddie Irvine, the well-known racing driver, and certain of his management companies, against TalkSport Ltd ("TSL"). Since nothing turns for present purposes on the inclusion of the management companies as claimants, I shall proceed as if Mr Irvine were the only claimant.
By his order dated 27 March 2002 Laddie J ordered TSL to pay to Mr Irvine damages for passing off which he assessed in the sum of £2,000, with interest. The judge granted permission to TSL to appeal on the issue of liability and to Mr Irvine to appeal against the assessment of damages. Each has done so.
THE FACTUAL BACKGROUND
Prior to 2000 TSL (under its then name Talk Radio UK Ltd) operated a commercial news and talk-back radio station known as Talk Radio. In 1998 or early 1999 it was decided that the station should change its 'on-air' character from news coverage and talk-back to sports coverage. This in turn involved 'rebranding' the station by changing its name from 'Talk Radio' to 'TalkSport' (and by changing TSL's name to its present name). These changes were made in about February 2000.
In the meantime, during 1999 TSL acquired the rights to cover a number of prominent sporting events, including the FIA Formula One Grand Prix World Championship ("the Championship"). The 1999 Championship consisted of sixteen Grand Prix races, each held in a different country. The British Grand Prix (the eighth race in the sequence) took place at Silverstone on 11 July 1999.
Like all commercial radio stations, Talk Radio relied heavily for its financial success on the generation of advertising revenue. In early 1999, to support the change to sports coverage and to generate interest among potential advertisers, TSL embarked on a promotional campaign, under the guidance of a specialist marketing company called SMP Ltd ("SMP"). The campaign consisted of sending boxed packs to just under 1000 recipients who were thought to be likely, directly or indirectly, to place advertisements on the station. Three boxed packs were produced: one related to cricket (TSL having acquired the rights to cover the England cricket team's winter tour of South Africa); one was of a more general nature; the third, with which the present action is concerned, related to Formula One ("the Formula One pack").
The Formula One pack, which was designed to coincide with the British Grand Prix, consisted of a box bearing, on the outside, a photographic image of a Formula One racing car. The driver of the car is not expressly identified (nor, for that matter, is he identifiable – at least to the uninitiated). The evidence is that he is in fact Mr Damon Hill. Inset at the top righthand and the bottom lefthand corners of the main image are photographic images of Mr Michael Schumacher, another well-known Formula One driver. At the top of the main image are the words "ALL THE SMELLS …", and at the foot are the words "…. ALL THE NOISE". Running upwards along the righthand edge of the main image is a request to return the package to an unidentified PO Box if undelivered.
The box contained a pair of boxer shorts and a leaflet or brochure. Across the rear of the boxer shorts is a representation of a skid mark such as would be made by a racing car braking sharply. On the front of the boxer shorts is the station's logo, consisting of the words "talk radio" together with the radio frequency of the station. The leaflet or brochure consists of a single sheet of paper folded across the middle, so as to form four pages.
On the front page of the leaflet, under the title "GRAND PRIX", there is a photographic image of Mr Irvine dressed in the racing gear of the Ferrari team (which Mr Irvine had joined in 1996) and apparently holding up to his left ear a small radio on which the station's logo clearly appears. Mr Irvine is shown with his right hand raised to his right ear, as if to block out background noise from revving racing car engines, thus giving the impression that he is listening intently to the radio, and hence (given the logo) to Talk Radio. Immediately underneath the photographic image appears, once again, the station's logo and, alongside the logo, the words "… we've got it covered!". Across the top of the inside of the leaflet when it is opened out (that is to say running across the top of the two inside pages of the leaflet) are the words "Pole position again", flanked to the left by the logo and to the right by another photographic image of a Formula One reacing car. The text beneath informs the reader that Talk Radio had obtained the coverage of all the sixteen races which comprised the 1999 Championship. In relation to advertising, the text of the leaflet includes the following:
"Talk Radio offers the most cost-effective advertising opportunities in live exclusive sport and offers you tailor-made solutions for promotional campaigns. …. Talk Radio's advertising breaks are clutter free and limited to 7 minutes per hour, nationally. …. Talk Radio gives you the opportunity to associate with the Grand Prix Championship through an EXCLUSIVE advertising opportunity around Talk's comprehensive coverage. …. Talk Radio gives you the opportunity to reach loyal and captive Grand Prix fans. …. Talk Radio gives you the opportunity to reach an intelligent, responsive audience and add value to your brands with distinct programming. …. In essence, a comprehensive radio station where listeners are 19% more likely than the average adult to notice your advertisements on the radio."
The inside of the leaflet also contains an analysis of "Talk Radio's Grand Prix advertising opportunities".
On the back of the leaflet is an offer, expressed to be in addition to what is described as "an unbeatable advertising opportunity", of a free prize draw for anyone who contacts Talk Radio's sales team. The text concludes with the following:
"To find out more information about putting your advertising in pole position, contact Tim Bleakley."
Mr Bleakley was TSL's sales director.
On the back of the leaflet is a photographic image of Mr Michael Schumacher and two other Formula One drivers (one of which is Mr Irvine) on the podium after a race. Mr Schumacher and Mr Irvine are both in the racing gear of the Ferrari team. Mr Schumacher is in the centre, as the winner; Mr Irvine is to his right, as the runner-up.
Following his move to Ferrari in 1996, Mr Irvine proceeded to build up a substantial worldwide reputation as a Formula One driver. This was accompanied by an increasing demand for his 'endorsement' of particular products or services: that is to say, the use of his image in connection with a product or service so as to indicate his association with and commendation of that product or service. From 1996 onwards he entered into a number of lucrative endorsement deals, to which I shall have to refer in more detail later in this judgment.
Mr Irvine's 1999 season was particularly successful, and in the course of it he was the subject of a substantial amount of media coverage. He won the first race in the Championship (in Australia) and after fifteen of the sixteen races he was in the lead in the drivers' world championship, although his final position was runner-up. In the United Kingdom in particular he had achieved celebrity status. As the judge put it, he was 'hot property'.
The cause of the present dispute is the image of Mr Irvine which appears on the front of the leaflet which formed part of the Formula One pack. It is common ground that the image is not a genuine photographic image, in that TSL, having (perfectly properly and without any breach of copyright) purchased from a photographic agency a photograph of Mr Irvine listening to a mobile telephone, altered the photograph by substituting the radio for the mobile telephone. It is that 'doctored' image which appears on the front of the leaflet. It is also common ground that at the time Mr Irvine knew nothing of the Formula One pack or its contents, and in particular that he had not agreed to the use of the image in the leaflet or to give any kind of endorsement of Talk Radio.
In the action, which was commenced on 22 December 2000, Mr Irvine alleges that by 1999 he had built up a valuable goodwill and reputation in his name and image; that the image on the front of the leaflet was calculated to deceive, and would lead a substantial number of members of the public in the United Kingdom to believe (contrary to the fact) that he had endorsed Talk Radio; that in the premises TSL had passed off its radio station as having been endorsed by him; and that as a result he had suffered loss and damage.
By its Defence, TSL admits distributing the leaflet, but denies liability for passing off. Paragraph 7 of the Defence pleads as follows:
"The distribution of the leaflets complained of was not calculated to deceive or cause confusion …. The leaflets complained of contain photographs of a number of Formula One racing drivers. The leaflets are...
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