Lecture notes for the Intellectual Property Law module linked to Intellectual Property Law Essentials.
Author achieved a first-class grade for the module.
Lecture 6 – Character Merchandising
• Using the name and/or image of a famous character real or imaginary in order to promote
goods.
• This kind of merchandising is a multimillion-pound industry.
• They should get a licence for the proposed use – the licence will state any conditions.
• Some traders do not do this.
• Quality is also an issue.
Character advertising
• How are we to understand character merchandising?
• Legal position is unclear:
1. Defamation - if the character is brought into disrepute by the proposed commercial use of
their name for one reason or another.
2. Breach of copyright - in an image or a cartoon.
3. Breach of trade mark - if a person's trademarked their image.
4. Passing off
1. Defamation
• Monson –v- Tussauds 1894 1 QB 671
Monson was charged with murder but acquitted with a verdict of "not proven.” So he should
have been able to leave the court with no stain upon his character. What had happened,
however, was that Monson had been very much in the press and the press very much taken
the view that he was guilty. They spent a considerable amount of time and effort preparing
and waxwork figure of Monson, which originally, they wanted to use in the chamber of horrors
when he was convicted, but he wasn't convicted. Tussauds was left with the problem because
the not proven verdict wasn't emphatic enough for the public to accept that Monson was
completely guiltless of the murder.
Tussauds used the basement floor for the chamber of horrors and the top floor being where
good respectable figures are displayed. Tussaud put Monson’s figure half way down the stairs
and it was held that this was defamation to right thinking society. Monson sued Tussauds and
was successful in establishing that right thinking members of society that he was not being
held in as a good and respectable figure, but rather as someone beneath that.
• Tolley –v- Fry 1931 – amateur golfer whose picture was used to advertise chocolate …
Tolley was an amateur golfer and Fry made the famous Turkish Delight and also a number of
other confectionaries. They decided to use his image to advertise their chocolate products.
Tolley sued Fry on the basis that as an amateur golfer, he was not allowed to acquire any
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