The Court of Appeal yesterday dramatically increased the passing off damages payable by Talksport to the F1 racing driver Eddie Irvine, raising them from the £2,000 awarded by the High Court last year to £25,000.
As reported in our early warnings of March and May 2002, Talksport had used a manipulated image of Irvine holding what appeared to be a radio bearing the words ‘Talk Radio’. The photograph was used on a brochure as part of a limited campaign to interest potential advertisers in placing advertisements with Talk Radio.
Mr Justice Laddie in the High Court found that the use of Irvine’s image in this manner amounted to passing off, but later assessed damages on the basis of a reasonable endorsement fee at only £2,000, bearing in mind the small scale of the promotion, which went to under 1,000 recipients and cost only £11,000.
The Court of Appeal yesterday held that this approach was “clearly wrong”. The small scale of the promotion was irrelevant in this case. What mattered was the fee which Talksport “would have had to pay to obtain lawfully that which it in fact obtained unlawfully”, and Irvine’s evidence was that he would “not have got out of bed” for less than £25,000. Irvine had simply not signed any endorsement deals in 1999 for less than £25,000, and this should have been taken into account.
The increased damages award will be good news to celebrities who derive income from endorsements. They will be well advised to set high figures below which they don’t get out of bed, and stick firmly to those figures.
Advertisers making use of celebrities without permission will need to be all the more careful to avoid false endorsements. The damages payable, if the use of a celebrity amounts to passing off, may not bear any relation to the scale of the campaign.