In the lead up to the Christmas and new year season, most of us are accustomed to seeing television advertisements featuring well-known actors and personalities endorsing a range of luxury products such as perfumes and watches.
Indeed the John Lewis Christmas advert is a television advertising campaign which is released in the build-up to Christmas. John Lewis launched their first Christmas advert in 2007. It has since become something of an annual tradition in British popular culture, The adverts tend to attract widespread media coverage and acclaim upon their release
Obviously a personality like Sean Connery will have been handsomely rewarded for endorsing a famous brand of watch. The question people often wonder about is to what extent a person, famous or otherwise, can control the use of his or her image or likeness on products or services. Can, for example, use Sean Connery’s image to sell your calendars bearing his image on the front cover?
In the UK there is as yet no recognised legal right of publicity or personality. This means that a person has no specific legal right in the UK to control the unauthorised use of their image or appearance.
Celebrities do have some legal remedies though, so be careful before you use a famous person’s image. Has the celebrity registered their name or signature as a trade mark?
Even if the famous person has not registered a trade mark of their image or likeness, that person may still be able to successfully challenge use by others of their image on the basis of passing-off, which is a legal remedy that protects the goodwill which has been built up by a person in their business. Their argument would be that you are wrongfully appropriating that goodwill. To succeed, they have to prove 3 elements: a recognised goodwill in the UK, a misrepresentation by the defendant, and damage caused to the claimant’s goodwill.
For present purposes, the key element to be proved by the famous person or celebrity is misrepresentation: will the public be misled into believing that my 2020 calendar bearing the image of, say, Sean Connery on its cover has been approved by or has some connection with that former Bond star?